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Its Aaministration 



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Aids to Monopoly 



By MURRAY CORRINGTON 



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of the New York Bar 



A frank criticism of the methods and 
practices of our Federal Courts^ and their 
deadening influence upon the spirit of 
independent and progressive invention 



COPYRIGHT 1913 
By Murray Corrington 

PRICE FIFTEEN CENTS 



THE PEARSON PUBLISHING COMPANY 

425 East 24tli St., New York City Putlishers of Pearson's Magazine 

SELLING AGENTS 



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The Patent Law and Its Admin- 
istration as Aids to Monopoly 

By MURRAY CORRINGTON 

OF THE NEW YORK BAR 



Copyright, 1913, by 
Murray Corrington 



FOREWORD 

C I. '^HIS pamphlet has been prepared primarily for 
/ the purpose of setting before the public and 
its representatives in Congress the facts con- 
cerning the great numbers of independent inventors 
who are not in the employ of the large manufacturing 
concerns ^ which make it impossible for them, in the 
present state of the patent law and its administration 
in the federal courts, to protect their inventions from 
appropriation; and in the hope that, these facts being 
known, such modifications in the law and its admin- 
istration may be brought about as will enable those 
inventors to protect their inventions and secure the 



/3- P^y.. 



2 The Patent Law and Its Administration 

rewards to which their labors entitle them, and of 
which the law should afford them assurance. 

While the pamphlet has been copyrighted, this 
has not been done with any view to pro jit from its 
publication. Permission is therefore given to editors 
of newspapers and magazines to quote such portions 
of its contents as they may desire in commenting upon 
the situation disclosed therein, and they are requested 
to cooperate in such manner and to such extent as 
they may feel disposed in giving the facts publicity 
and in advocating desired reforms in the law, to the 
end that they may thus aid in securing protection and 
justice for those independent inventors in whose be- 
half the pamphlet has been written; and they will^ at 
the same time assist in placing those inventors in 
position and giving them the necessary encouragement 
to enable them to render the public far greater bene- 
fits than heretofore possible through the increasing 
numbers of their inventions. 

To a possible objection on the part of some readers 
that the writer has not in all instances given the names 
of the cases, the courts and the judges referred to, a 
reminder of the power of federal courts and judges 
to summarily deal with those who criticize their con- 
duct or attempt to expose their wrong-doing, by the 
infliction of penalties as for contempts or by disbar- 
ment, as set forth in the pamphlet, must be a suf- 
ficient answer. 




1 



As Aids to Monopoly 



T 



HE Constitution of the United States provides (Art. i, 
Sec. 8) that Congress shall have power: 

"To promote the progress of science and useful arts by securing for 
limited times to authors and inventors the exclusive right to their respective 
writings and discoveries." 

In accordance with this authority, Congress has from 
time to time, beginning in 1789, passed various laws setting 
forth the necessary steps to be taken by inventors to secure 
protection for their inventions, and the restraint of and 
damages for the infringement of their rights. The formal 
document which the government issues to an inventor for 
the protection of his invention is called ''Letters-Patent," 
or, by common speech, a "Patent." 

For several decades after the patent system was estab- 
lished patents for inventions were issued through the office 
of the Secretary of State, but in 1836 Congress passed the 
act creating the Patent Office and placed in charge thereof 
a Commissioner of Patents and a corps of expert assistants 
who carefully examine all applications for patents and issue 
the same when the applicants are found to be entitled 
thereto, all patents running for the period of 17 years from 
the dates of their issue. 

As soon as an inventor brings his invention to such 
state of perfection that he feels warranted in having the 
same patented, he may file an application for a patent 
thereof in the Patent Office, in which he must explain the 
invention in detail and illustrate the same by drawings if 
that be practicable. While he may do this work himself, 
it is far better to have it done by an attorney who has had 
experience both in the preparation and prosecution of ap- 
plications for patents, and also in patent litigations in the 
courts. The application is referred to one of the forty odd 
classified divisions of the Patent Office, according to the 
subject-matter of the invention, where the examiner in 
charge of that division and his assistants, who have become 
experts by years of special study of the particular art to 
which the invention relates, carefully examine the applica- 
tion and compare the alleged invention described therein 



4 ThePatentLaw and Its Administration 

with all portions of the prior art that ar€ disclosed in other 
patents and publications, and if they find- nothing to war- 
rant a rejection of the application, because the alleged in- 
vention is not new, or to require amendments and a nar- 
rowing of the claims of invention, approve the application 
as filed, and allow the patent to issue without amendment. 
Where the inventor's counsel differs with the examiner in 
charge as to the justice either of rejecting the application 
or of requiring amendments, appeals may be taken and the 
questions determined ultimately by the Court of Appeals 
of the District of Columbia. If it be found that the inven- 
tion described in a given application is substantially the 
same as that described in a pending application of another 
inventor, or that described in a recently issued patent, a 
proceeding known as an "Interference" may be instituted 
between the applications, or between the application and 
the patent, to determine who first made the invention, and 
who shall be entitled to a patent therefor, and of these pro- 
ceedings we shall speak further. 

Under the patent law a patent may be issued to one 
who has discovered any new and useful art, machine, manu- 
facture or composition of matter, or any new and useful 
improvement thereof. Most patents are issued for improve- 
ments in mechanical apparatus of various kinds. The in- 
vention may be a wholly novel construction or device, 
which is rarely the case, or it may be any novel and use- 
ful improvement upon some existing device. Patents on 
mechanical devices are almost invariably for what is known 
as new combinations of mechanical elements. If an inven- 
tor devises a new mechanical apparatus, or if he can add 
some mechanical device or attachment to cooperate with 
an existing apparatus and thereby produce or effect a new 
and useful result which the old apparatus could not pro- 
duce, he has made a new combination and may obtain a 
patent therefor, although his new apparatus may infringe 
a patent on the earlier apparatus of which his is an im- 
provement. Or if he can take an existing combination of 
mechanical parts or elements and rearrange those elements 
into a new combination that will give a better result or 




As Aids to Monopoly 



some new and additional result that could not be effected 
by the old combination, he may have a patent for his new 
combination. Again, if he can take an old combination 
of mechanical elements or parts, consisting, for instance, 
of elements A, B, C, D, and E, and by eliminating one or 
more of the elements or parts, such as E, or D and E, so 
rearrange the remaining elements as to effect all the results 
of which the more complicated structure was capable (and 
possibly additional results), he may receive a patent for 
this new combination which simplifies and cheapens the ap- 
paratus. 

Since our patent system was established in 1789 it has 
experienced a growth and development of consecutively 
increasing importance, resembling somewhat a geometrical 
progression. During the first half century of its existence 
(1789-1839) approximately 11,421 patents were issued; 
during the next half century (1839-1889) approximately 
417,201 were issued; and during the last 20 years approxi- 
mately one and one-half times as many patents have been 
issued as were issued during the preceding 104 years since 
the system was established, bringing the total number of 
issued patents to considerably above 1,000,000. 

The relation of patents to manufacturing is both inti- 
mate and important, and this intimacy and importance have 
likewise increased with the growth of the patent system. 
Many of the most important manufacturing establishments 
were originally organized for the purpose of developing 
and marketing new inventions, which could not have been 
organized unless the inventions had been patented, nor 
unless the organizers had believed that the patents were 
sufficient to insure them the monopoly intended to be se- 
cured during the lifetime of the patents. After a concern 
gets fairly established in the manufacture of a given line 
of apparatus, especially if that apparatus be more or less 
complicated and involves delicate adjustment and operation, 
it is necessary for its managers to be constantly on the look- 
out for all improvements upon that apparatus that may be 
devised and to secure control of and patents upon as many 
of such improvements as possible, lest rivals having a su- 



6 The Patent Law and Its Administration 

perior apparatus appear in the field. It is the usual custom 
for large manufacturing companies to require their em- 
ployees to turn over to them all inventions and improve- 
ments relating to their manufactures that are made by 
the employees during their employment; and in such cases 
all expenses of procuring the patents for such inventions 
and maintaining the rights secured thereby are borne by 
the employing companies. But a different situation arises 
when the invention is that of an independent inventor who 
is not connected with any established concern and who 
strives to obtain a patent for his invention, to maintain 
his independence and protect the rights secured by his pat- 
ent. It is of the systematic and organized efforts of the 
wealthy and powerful manufacturing corporations to appro- 
priate the inventions of these independent inventors and of 
their utter inability to prevent such spoliation of their prop^ 
erty, owing to the cumbrous and expensive proceedings in 
the federal courts, which they must invoke, and to the usual 
incompetency, and sometimes indifference and unfairness 
or favoritism, of the judges who preside in some of those 
courts, that we desire here to speak. 

In order that the reader may have a clear understanding 
of these matters, we shall describe the actual experiences 
and difficulties which an independent inventor encounters 
who, having made a meritorious invention, proceeds to pat- 
ent the same and then strives to maintain his rights under 
his patent and prevent the appropriation of his invention 
either before or after the patent is issued; and, while all 
of the experiences which we shall relate have not neces- 
sarily befallen any one inventor, everything which we de- 
scribe has befallen some independent inventor and has come 
within the writer's personal observation or experience dur- 
ing his 20 years of intimate connection with the issue of 
patents through the Patent Office and patent litigation in 
the federal courts, or is set forth in the reported decisions 
of those courts. 



As Aids to Monopoly 



APPROPRIATING AN INVENTION— BEFORE THE 
PATENT THEREFOR IS ISSUED 

IF the inventor is careful to keep his invention a secret, 
he can usually obtain his patent without great trouble 
or expense. Where the invention is one of great impor- 
tance and one of the large manufacturing combinations en- 
gaged in the line of manufacture to which the invention 
relates obtains a knowledge of it before the patent is is^ed, 
the attempts to appropriate the invention often proceed at 
once without waiting for the patent to issue. Practically 
all of the large manufacturing corporations have a corps 
of skilled mechanics, engineers and attorneys in their em- 
ploy who are constantly on the lookout for opportunities 
to secure control of inventions made by inventors outside 
of their employ, and it frequently happens that, if a new 
and valuable idea is brought to their attention before it has 
been patented,' some of them will file an application for a 
patent, or amend an application already on file, and secure 
the declaration of an ''interference" in the Patent Ofiice 
with the application of the independent inventor, if not 
with any hope of winning that contest and securing a pat- 
ent for his employers, at least with the purpose of giving 
his employers that powerful weapon to assist them in se- 
curing the invention and patent at their own price, because 
these interference contests keep the independent inventor 
under the doubt and anxiety of a possible defeat, postpone 
at best the issue of his patent for months and sometimes 
for years, and cause an expense which it is often impossible 
for him to meet. 

In one such instance a large railroad sup^.!/ corporation 
obtained knowledge of an invention of independent parties 
which they were preparing to offer upon the market and 
its counsel filed amendments to one of its pending applica- 
tions for the purpose of making the claims of the patent when 
issued cover the independent invention. As soon as the pat- 
ent thus broadened was issued, suit was brought thereon by 
the corporation against its rivals, alleging that the indepen- 



8 The Patent Law and Its Administration 

dent invention infringed the patent. The trial judge, a man 
of great ability in patent cases and free from all suspicion of 
undue influence, denounced this conduct as a transparent at- 
tempt to appropriate the property of others, but on appeal to 
the Circuit Court of Appeals, while- his decision was af- 
firmed by two of the three judges, the third judge, who, it 
may be incidentally remarked, owed his appointment to the 
influence of large corporation interests and their political 
allies, was in favor of permitting what the trial judge de- 
nouHced as an attempted appropriation. 

On another occasion an independent inventor consulted 
one of the large electrical corporations with a view of hav- 
ing his invention introduced by it and was referred by the 
company's vice-president to its engineers. Before the in- 
ventor got his application for a patent filed, these engineers 
filed in the Patent Ofiice an application for a patent in their 
own names, claiming the invention as their own. An in- 
terference was declared and the patent was finally issued 
to the independent inventor, but only after an expensive 
contest of several years' duration in the Patent Office and 
the Court of Appeals of the District of Columbia. 

In another case an inventor, A, took an improvement 
in typewriters to one x)i the big typewriter companies and 
was referred to its superintendent, who reported adversely 
upon the invention. Shortly thereafter the typewriter com- 
pany proceeded to make the invention with a view of plac- 
ing it upon the market independently of A. Meanwhile, 
another inventor, B, made the same invention, though he 
was later than A, and he promptly filed his application for 
a patent in the Patent Office. The first inventor. A, because 
of the discouragement which he had received from the type- 
writer company, neglected to follow up the adapting and 
perfecting of his invention and the filing of an application 
for a patent therefor, but after some delay he constructed 
one of his devices and filed his application for a patent. 
The typewriter company, discovering that B was likely to 
control the invention to its detriment, thereupon tried to 
assist A to get his patent and defeat B. An interference 
was declared in the Patent Office between the applications 



As Aids to Monopoly 



of A and B, but the officials decided that the building of 
A's device by the typewriter company without his knowl- 
edge could not inure to his benefit as a reduction to prac- 
tice of the invention, and that, as A had not been diligent, 
B was entitled to the patent. 

APPROPRIATING THE INVENTION— AFTER THE 
PATENT IS ISSUED 

AS soon as the patent is issued, the fullest knowledge 
of the invention, including a detailed description of 
its construction and mode of use, is open to the public, 
since these matters are, as required by law, carefully set 
forth in detail in the patent. The Official Gazette (of the 
Patent Office) is issued on Tuesday of each week and con- 
tains a brief notice of each patent and of its subject-matter 
which is included in that week's issue. The attorneys and 
experts of the large manufacturing concerns are accustomed 
to scan each number of the Patent Office Gazette, note the 
numbers of all patents having relation to their lines of 
manufacture, and promptly secure copies of such patents 
as they feel may affect their business or be of interest to 
them. It is at this point that most of the attempts at appro- 
priation of inventions begin. 

If the patent of the independent inventor discloses a 
mere improvement of no great importance upon an exist- 
ing apparatus it is not vital as to who owns it. But if it 
discloses an invention of real and substantial merit and 
superior to anything theretofore made, the systematic work 
of appropriating the invention is usually begun by one or 
more of the corporations already in that line of business 
and whose profits will be materially affected if this new 
and superior apparatus is placed upon the market. 

The corporation desires to accomplish this appropriation 
with as little expense as possible, but its managers are pre- 
pared to meet any expense that may be necessary. In this 
work counsel, experts and managers cooperate, and the 
methods which they employ are usually as follows: i. They 
try to induce the inventor to sell his invention and patent 



lo The Patent Law and Its Administration 

to the corporation at their price, frequently offering him a 
salary to go into its employ and agree to turn over to it all 
his future inventions relating to its manufactures. 2. This 
failing, they try to frighten or force him into accepting 
their offers by assertions that his new apparatus is an in- 
fringement of some old patent^ already owned by the cor- 
poration, and by threats of, or actually bringing, infringe- 
ment suits against him. 3. If they fail in both these, they 
attempt to "get around" or "beat" the patent by making 
some changes in or additions to his invention, and proceed 
to manufacture and sell the same in defiance of his rights, 
at the same time offering to intending purchasers of their 
apparatus a guaranty against damages for infringement and 
threatening them with suits for damages if they use that of 
the independent inventor. 

In most cases these proceedings on the part of the big 
corporation are sufficient to enable it to secure possession 
of the inventor's invention and patent, since they frighten 
those who would otherwise purchase the new invention 
from doing so, they frighten the inventor's backers fTom 
giving him the financial aid necessary to enable him to 
manufacture and market his invention, and they necessi- 
tate the expenditure of large amounts of time and money 
by the inventor in defense of his legal rights, which he can 
do with difficulty, or usually not at all. And experienced 
counsel will advise him frankly of the almost hopeless task 
of attempting to maintain his rights under his patent in 
the federal courts against the power and influence of a 
wealthy corporation, exerted through channels and in ways 
known only to the managers of such concerns, guided and 
aided by shrewd and cunning counsel. 

As may be imagined, there are few inventors who have 
the courage or who can secure the financial assistance nec- 
essary to carry through the long contests in the courts 
for the maintenance of their rights, and this is primarily 
because the patent law and its administration in the federal 
courts are such and patent suits are attended with such 
great delays and expenses that the poor man has no kind 
of equal chance against the power and influence of the 



As Aids to Monopoly ii 

wealthy corporation. There are instances, however, where 
the independent inventor declines to be frightened or coaxed 
mto selling out his invention and patent on the terms pro- 
posed by the big corporation and insists on attempting to 
maintain his rights with such ability and means as he can 
command, and it is more particularly with these independent 
inventors and with the almost insuperable obstacles which 
they must overcome that we are here more particularly 
concerned. 

A suit for infringement of a patent may be either an 
action at law to recover damages, wherein all issues of 
fact are tried before a jury, or it may be (usually is) a suit 
in equity to recover damages and profits and also to restrain 
further infringements, in which case all issues of fact (and 
of law) are determined by the court without a jury. Ordi- 
narily the details of legal proceedings are uninteresting" to 
the general reader, but it is absolutely necessary to pay at- 
tention to such proceedings in specific cases in order to un- 
derstand how wrong and injustice result in our courts to 
poor litigants. 

While we shall follow the proceedings through the 
courts as they have been conducted practically since our 
government was established, we are aware that the Supreme 
Court has recently promulgated a new set of rules to govern 
the conduct of equity suits, and that the committee on 
patents of the House of Representatives has lately rendered 
a report and introduced a bill with a view of amending the 
patent law and its administration ; but we shall point out 
near the close of this article that neither the new rules nor 
the proposed new law will afford independent inventors 
any substantial assistance, but will in some respects in- 
crease the handicaps under which they now labor. 



A CASE IN POINT 

I N a given instance an independent inventor who had per 
* fected his invention by several years' labor and study 
of the art to which it related filed his application, procured 



12 The Patent Law and Its Administration 

his patent and made extensive preparations to place the 
invention upon the market before he allowed any of the 
big corporations engaged in that line of business to obtain 
knowledge of the invention. When the plan and purpose 
of the invention was first made known it was universally 
recognized as a radical departure from and improvement 
upon the art to which it related, provided it was new. 
There was nowhere to be found, either in prior patents 
or in the literature of that art, or in the catalogues or cir- 
culars of the concerns engaged in that line of business, or 
in any drawing or in printed or written paper, any reference 
to, or hint of, the purpose or results for which the inven- 
tion was devised. The examiner who examined and passed 
the application in the Patent Office had declared that the 
whole theory and purpose of the invention showed such 
a wide departure from the prior art and was so fundamen- 
tally new that claims as broad as the inventor desired would 
be (and were) allowed. As soon, however, as one of the 
big corporations obtained knowledge of the invention it 
began the work of appropriation, and we shall follow the 
efforts of the inventor to maintain his rights and note the 
actual (not merely possible) results which followed as the 
facts were developed by the litigation. 

Immediately after the issue of the patent copies thereof 
were obtained and carefully studied by the attorneys and 
engineers of the corporation. One of the mechanisms made 
in accordance with the patent was also obtained by them 
at the earliest practicable time, and after being examined 
and operated it was taken apart and a full set of drawings 
of the apparatus was made. The managers of the corpora- 
tion at first proposed to the inventor through third parties 
that he and his associates sell his invention and patent to 
their company for a sum considerably less than the actual 
cash which had been expended in perfecting the invention 
and preparing for its manufacture and sale, and also pro- 
posed that the inventor go into the employ of the corpora- 
tion at a salary. These propositions being rejected, they 
then spread reports among the purchasers, actual and pros- 
pective, of the inventor's apparatus that their corporation 



AsAidstoMonopoly 13 

would shortly be prepared to furnish new apparatus which 
would effect all the results of the inventor's apparatus. In 
order to subject the inventor to annoyance and expense 
and frighten his financial backers and customers, they next 
had their attorneys commence suits against the inventor, 
which were prosecuted no further, alleging that his appara- 
tus infringed some old patents owned by the corporation, 
and caused knowledge of said suits to be spread among 
the inventor's customers, at the same time threatening them 
with suits for damages if they used his apparatus and offer- 
ing to guarantee them against all claims if they patronized 
only the corporation. Meanwhile, the engineers and ex- 
perts of the corporation, with all the knowledge of the in- 
ventor's apparatus which they had obtained from a study 
of his patent and one of his mechanisms, were busily en- 
gaged in devising an apparatus with a view of obtaining 
all the beneficial results of the invention under such a dis- 
guise that they could induce the court in case of suit to 
allow them to escape the charge of infringement, or, in 
other words, they were determined if possible to appro- 
priate the substance of the invention while leaving the in- 
ventor the empty husks of a worthless patent. In the case 
referred to this new apparatus was, in fact, and was finally 
admitted to be, substantially the apparatus of the inventor's 
patent with some devices added thereto. As soon as its 
new apparatus was ready and even before it was made so 
as to operate satisfactorily, the corporation began to adver- 
tise the same extensively in pamphlets, circulars and trade 
journals, and to supply the demands therefor. 



SEEKING PROTECTION IN THE COURTS 

SEEING the entire substance of his invention thus appro- 
priated and finding his efforts to procure necessary 
financial aid and to market his invention completely blocked, 
the inventor commenced a suit in equity against the cor- 
poration in the federal court of the proper district to re- 
strain infringement of his patent, after which pleadings 



i 



14 The Patent Law and Its Administration 

were served, proofs were taken by both parties and- the case 
made ready for a hearing. 

There was little use for the patentee to ask for an im- 
mediate injunction preliminary to the taking of the proofs 
or depositions of witnesses, because a motion for such in- 
junction can only be made on affidavits supporting the 
charge of infringement. The federal judges in practically 
all cases frankly confess their inability, and will not under- 
take, to understand a patent, although it is a document 
issued by the government under its seal, except as it is 
explained to them by the affidavits or testimony of so-called 
"experts/' and they will not grant such injunction at the 
commencement of the suit if any doubt is raised in their 
minds on any question in issue. The wealthy corporation 
rarely has any difficulty in raising such doubt, because, with 
its unlimited resources, for every affidavit which the inde- 
pendent inventor can procure supporting the charge of in- 
fringement, the defendant corporation can furnish ten or 
an hundred contradicting every allegation of the plaintiff's 
affidavits. For these reasons a "rich corporation can, under, 
our system of patent law and its administration, by the 
expenditure of a few hundred, or at most a few thousand, 
dollars for counsel fees and affidavits cunningly drawn by 
counsel and signed by hired "experts," create such doubts 
in the minds of the judges that it will be permitted to in- 
fringe any patent that is issued affecting its business for 
from three to five years while the patentee is prosecuting 
a suit for infringement against that corporation through 
the federal courts to final judgment. 



EXPENSES OF PATENT SUITS 

AT this point let us say a word about the proceedings 
and expenses of suits in equity to restrain infringe- 
ment of a patent. In preparing the case for a hearing the 
patentee or complainant introduces the patent or a copy 
thereof and the depositions of one or more so-called ex- 
perts, who must explain the invention described in the pat- 



AsAidstoMonopoly 15 

ent and the apparatus which is alleged to infringe the patent 
and show how it is related to that of the patent and give 
the reasons for holding it to be an infringement. The cor- 
poration or defendant then introduces such documents, in- 
cluding prior patents, as its counsel desires, and the deposi- 
tions of other experts disputing the complainant's conten- 
tions, and attacking the validity of the patent, or denying 
infringement. Thereafter the complainant introduces docu- 
ments and testimony to rebut the defendant's evidence, and 
the case is then ready for the hearing. 

The taking and printing of the testimony in a patent 
suit are very expensive and wasteful and give the rich liti- 
gant enormous advantage over the poor litigant. The rules 
of the courts usually require the testimony to be taken be- 
fore a stated examiner of the court, generally some friend 
of the judges, whose charge is about seventy-five cents per 
typewritten legal cap page, which is twice what it would 
cost if the counsel were permitted to have their own copy- 
ists typewrite the testimony before any notary public on 
whom they could agree. (We shall refer near the close 
of this article to the new Supreme Court rules, by which 
a district judge may order the parties to file affidavits, in- 
stead of depositions, of experts, and the witnesses must then 
be produced for cross-examination before the court upon 
the trial, or have their affidavits thrown out.) The printing 
of the testimony costs from fifty-five cents to a dollar or 
more per page. These expenses must be paid ultimately by 
the party against whom decision is rendered. Necessity 
compels the poor man to patronize the cheaper printer, 
while the rich corporation often patronizes the dearer, and 
the courts hold that in case the poor man finally wins, he 
can only collect fifty-five cents per page, because that is all 
he has paid, whereas if the other party wins, he can collect 
one dollar per page, because that is held to be a reasonable 
price. 

The great bulk of this testimony consists of the deposi- 
tions (affidavits) of so-called experts, which are made nec- 
essary because, although patents are formal documents pre- 
pared and issued under the seal of the government by a 



wmsm 



i6 



The Patent Law and Its Administration 



corps of skilled and competent experts, all questions of 
their validity and infringement must be decided by federal 
judges who are unskilled and inexperienced in the subject- 
matter of patents and cannot understand them without the 
aid of experts. These experts are simply hired partisans 
of the party calling them, and before one is allowed to give 
testimony he is thoroughly instructed by counsel as to all 
points in issue and as to just what views he must hold 
and maintain in his affidavit upon each point. They receive 
compensation ranging from $io to $ioo per day, and are 
found in every commercial and manufacturing center where 
there is patent litigation. They include laboratory chiefs, 
engineers, lawyers, and college professors, the latter being 
particularly desirable if much talked about, as they are sup- 
posed to carry more weight with judges. Frequently they 
advertise their vocation in newspapers : "Expert testimony 
furnished." In practically every case the opposing experts 
directly contradict each other, and the judges then say that, 
since "the experts are in flat contradiction," they must 
decide the case relying on their own common sense and 
such knowledge as they possess. In addition to the fore- 
going, the inventor must pay the daily charges of his ex- 
perts and those of his attorney for his attendance while 
taking the testimony both of his own experts and of the 
opposing experts ; and then there are the usual costs of 
the courts, including those for certifying the cumbrous rec- 
ords on appeal. An inventor cannot usually carry a suit 
through the federal courts in an endeavor to maintain his 
patent and restrain one whom he believes to be an in- 
fringer unless he is prepared to spend from $5,000 to $25,- 
000, which is prohibitive. A recent act of Congress in- 
tended nominally to lessen the expense of printing and cer- 
tifying appeals in the federal courts is limited by its terms 
to appeals from £nal judgments, but as most appeals in 
patent cases are from interlocutory or intermediate, and 
not from final, judgments, such cases are eliminated from 
such pretended advantages. Probably one half or more of 
these expenses could be avoided and the judges be in bet- 
ter position to decide patent cases intelligently if experts 



AsAidstoMonopoly 17 

were wholly excluded and the opposing counsel were com- 
pelled to give, under oath if need be, a brief statement of 
the facts and reasons based thereon in support of their 
respective contentions in the case, and nothing would be 
lost, since every "expert" is expected to follow faithfully 
in his testimony the instructions given him by counsel. 
But it would, of course, be far better still if all questions 
relating to patents could be decided only by judges who 
are themselves experts, thereby avoiding the necessity and 
attendant expense of expert testimony, as we shall pres- 
ently point out. 



CREATING A DEFENSE 

IN the instance above referred to, the inventor having 
submitted the usual proofs to establish a prima facie 
case of infringement, it was necessary for the defendant 
corporation to make a defense, and as none could be found, 
either in the records of the Patent Office, in its own pub- 
lications, or in the literature of that art, its only reliance 
must be an attempt to show that there was in use an ap- 
paratus capable of effecting the results set forth in the 
patent, before the inventor made his invention, or more 
than two years before he filed an application for his pat- 
ent, since the law allows an inventor two years to adapt 
and perfect his invention after its first conception, before 
filing his application, if, meanwhile, he uses reasonable dili- 
gence, and this is the way the defense was prepared : 

I. The managers and attorneys of the corporation had 
a drawing made which was a duplicate of that shown in 
its old catalogs, but they added to the new drawing an 
attachment or improvement not shown in the catalogs 
or circulars, and one of its employees swore that the draw- 
ing represented an apparatus made by the defendant and 
sold by it to a customer five or six years before the draw- 
ing was made and nearly two years before the inventor 
filed an application for his patent. They admitted that the 
apparatus as shown and advertised in their catalogs 



i8 The Patent Law and Its Administration 

would not anticipate or limit the inventor's patent, but they 
alleged that with the attachment added thereto, while not 
the apparatus of the patent, it would accomplish enough 
of the results set forth therein to so far limit the patent as 
to make it practically worthless. 

2. This employee of the defendant then took a copy 
of the new drawing to several of the employees of the 
alleged purchaser of the apparatus, explained it to them, 
told them that it showed an apparatus which was sold by 
the defendant to their employer and used by them at the 
times he had sworn to, and also told them that they would 
be called as witnesses for the defendant. 

3. The defendant's attorneys next interviewed these 
employees, again explained and discussed with them the 
new drawing with its additions, made arrangements with 
them to become witnesses for the defendant, furnished 
them a list of the questions that they would be asked and 
agreed with them as to the compensation they were to re- 
ceive for testifying, after which they were called as wit- 
nesses, had the list of questions read to them and answered 
to the effect that the new drawing, prepared as above, rep- 
resented an apparatus which was used in their employer's 
business at the times in question, but the attorneys would 
not allow them to tell how much they were to receive for 
giving their testimony. They were asked whether their 
employer had in its shops drawings of the apparatus in 
use at the times referred to and whether they showed the 
apparatus with the attachment or improvement recently 
added to the new drawing, and they answered that such 
drawings were in their employer's shops and that they 
showed the old apparatus of the defendant's catalogs with- 
out said attachment or improvement. These old drawings 
were kept out of sight. 

4. The attorneys then introduced records from the de- 
fendant's books of orders for apparatus from, and sales 
of apparatus to, the customer, at the times referred to, but 
all such orders and sales related to the apparatus as it was 
shown in the defendant's contemporaneous catalogs and 
circulars, without the slightest reference to the attachments 



AsAidstoMonopoly 19 

or improvements lately added to the new drawing. Though 
both defendant's employee and the employees of the cus- 
tomer swore that the attachments were sold by the defend- 
ant to the customer, records of which sales (if true) were 
in defendant's books, its attorneys carefully withheld the 
records of these alleged sales and of the times when they 
took place from the court. 

5. The defendant's employee was asked whether he or 
the defendant ever made any attempt to secure a patent 
for the apparatus shown on the new drawing and he an- 
swered that, while the matter had been carefully consid- 
ered, they had not tried to secure a patent, as they believed 
that the apparatus was not patentable, and yet, if the pre- 
tensions of the defendant's managers and attorneys were 
true, they could have secured a patent that would have 
given them a monopoly of this new and revolutionizing 
advance in the art for 17 years, and would have been worth 
several million dollars to the defendant corporation, 
whereas they preferred (so they pretended) to throw that 
opportunity away and allow that revolutionizing apparatus 
to become public property. 

To rebut this oral testimony of these witnesses, the 
inventor's counsel proceeded as follows : 

I. He put in evidence and relied upon the catalogs, 
circulars, advertisements, drawings, etc., issued by the de- 
fendant at the times in question and for two years 
thereafter, as well as the catalogs, advertisements, etc., of 
other manufacturers in the same line, and showed that not 
one of them contained the slightest mention of or reference 
to any such apparatus or any such results or operations 
as those set forth in his patent, while they actually gave 
warning of the dangers that would follow attempts to so 
operate their old apparatus ; that the defendant and other 
manufacturers made haste to set aside their old apparatus 
and to devise and furnish a new apparatus for the purpose 
of effecting the results or operations set forth in the pat- 
ent as soon as they heard of it ; and that the first mention 
that was made by them in drawing or in print or in writing 
of any kind of apparatus for which they claimed any of 



20 The Patent Law and Its Administration 

such results or advantages was after they knew all about 
the inventor's apparatus, and after he had filed an applica- 
tion for a patent thereon in the Patent Office. 

2. The inventor swore, aided by drawings and dated 
memoranda and confirmed by several witnesses who made 
or identified the drawings and memoranda, that he made 
his invention prior to the time when the witnesses declared 
that the apparatus shown in their newly-made drawing, 
referred to above, was sold by the defendant and used by 
its customer, and more than two years prior to filing an 
application for his patent; also^ that during the whole of 
such time he devoted himself exclusively to the work. of 
adapting and perfecting his invention, and to securing finan- 
cial backing and factory equipment to place the invention 
on the market, and actually perfected the invention, se- 
cured such facilities and began the manufacture and sale 
of the invention. No later evidence was introduced by the 
corporation, so that the above was uncontradicted. 

3. The inventor pointed out that not one of the old 
patents referred to by the defendant's hired expert con- 
tained the slightest reference to those results and operations 
which the invention set forth in his patent was designed 
to provide, but that each and all of them was intended for 
some other and different purpose, as particularly pointed 
out therein, and in so doing he agreed exactly with the 
experts of the Patent Office and differed as radically with 
the defendant's hired experj;. 

4. The patentee was not trying to restrain the de- 
fendant corporation from making its old apparatus, as 
illustrated either in its catalogs and circulars when his 
invention was first made known, of in the newly-made 
drawing, referred to above, showing the attachment or im- 
provement added thereto. He was only seeking to restrain 
it from making the new apparatus which its engineers had 
devised after they knew all about his invention and had ob- 
tained and become famiHar with copies of his patent and 
had in its factory one of his mechanisms made in accord- \ 
ance with his patent In order to show the real character ! ^ 
of this lately devised apparatus^ and that it was in substance \ / 



A 



AsAidstoMonopoly 21 

merely that of his patent with certain devices added thereto, 
he introduced in evidence the defendant's pamphlets, cir- 
culars and advertisements illustrating and describing this 
new apparatus and setting forth its advantages over its 
old apparatus, and he declared that all these documents 
told the truth about said apparatus, and that he stood by 
the statements made therein ; but the defendant's attorneys 
called several hired experts, who contradicted said publica- 
tions and sought to show that said new apparatus was very 
different from what the defendant's own published descrip- 
tions declared it to be. 

The case was then submitted to the court. The trial 
judge had no difficulty in deciding every point in favor of 
the patentee, holding that the patent was valid and had 
been infringed, and that an injunction should issue. The 
business of the big corporations is conducted by very shrewd 
men and they are aware that it is a waste of time to cul- 
tivate the friendship and the favors of any judges except 
those whose decisions are to be final. 

The defendant corporation appealed to the Circuit Court 
of Appeals, with these remarkable results : 

1. Two of the three judges of that court, for whom 
the inventor's attorneys had introduced two additional 
copies (so that each judge would have a copy) of the 
pamphlets, circulars, advertisements, etc., constituting the 
documentary evidence on which the inventor based his case, 
since they sustained his entire contentions and refuted 
those of the defendant's hired experts, left those documents 
tied up in the bundle in which they were placed when first 
introduced, and did not examine their contents, but evi- 
dently allowed the other judge to decide the case and merely 
gave their assent. 

2. The judge who wrote the opinion and decided the 
case proceeded after this fashion: 

He held that the apparatus as shown on the newly-made 
drawing, that is, the apparatus shown in the defendant's 
old catalogs with attachments or improvements added there- 
to, for the purpose of creating a defense as hereinabove 
set forth, was sold by the defendant and used by the pur- 



22 The Patent Law and Its Administration 

chaser, not only at the times stated by the witnesses^, but 
a long while prior to that time. 

He declared that there was nothing in the record to 
contradict or cast doubt upon the oral testimony of the 
witnesses as to when said apparatus, including said attach- 
ments, was sold and used, whereas such testimony was 
both inconsistent with and contradicted by all the cata- 
logs, pamphlets and advertisements issued by the de- 
fendant at the time of and for several years after said 
alleged sales and use, and by thus carefully excluding from 
his opinion all reference to such publications and by the 
above statements at utter variance with the facts, he con- 
veyed, and doubtless intended to convey, the impression 
that no such documents existed. 

He declared that the oral testimony of the witnesses 
as to the sale by the defendant and use of said apparatus, 
including the attachments that were added to said drawing, 
was confirmed by written memoranda and data, such as 
orders for and bills of apparatus sold by the defendant, 
whereas all such written data related solely to the old ap- 
paratus as shown in the defendant's catalogs and cir- 
culars and contained no reference to any of said attach- 
ments or improvements, all reference to the dates when 
the latter were sold being carefully withheld from the court 
and excluded from the judge's opinion. 

He sustained in its entirety all the oral testimony of 
the defendant's witnesses, though it was contradicted by 
the defendant's own contemporaneous publications, but he 
rejected in its entirety the testimony of the inventor and 
his witnesses as to when he made the invention and what 
he did in perfecting it and preparing for its manufacture . 
and sale, though that testimony was confirmed by memo- 
randa and data and was not contradicted by a word or 
circumstance in the case. 

In order to have seeming justification for his determina- 
tion to destroy the inventor's patent, he declared that the 
patent was substantially the same as one or more old pat- 
ents, although none of them contained a reference to the 
results or operations for which the inventor devised his 



AsAidstoMonopoly 23 

apparatus, but each of them did relate to and describe a 
wholly different purpose and result, and none of them had 
ever gone into use or added anything of value to the art. 
He thereby merely read into some old patents something 
to which none of them made reference, and ignored the 
inventor, the patentees of these old patents and the experts 
of the Patent Office, who recognized the inapplicability of 
the old patents as references. 

In considering the defendant's new apparatus which 
was claimed to infringe the inventor's patent, he sustained 
the experts hired by the defendant to contradict its own 
publications, and he carefully excluded from his opinion 
all reference to those publications or to the fact that the 
patentee adopted and stood by every statement contained 
therein as true, thereby conveying and intending to convey 
the impression that the patentee's contentions were not 
confirmed. 

He omitted all mention of the fact, most damaging 
to the defendant's pretensions, that no attempt had ever 
been made to secure a patent on the old apparatus with the 
attachments added, alleged to have been sold by it, whereas, 
if all its pretensions were true, a patent might have been 
secured in the defendant's behalf that would have been 
worth to it several million dollars. 

In order to understand the gross injustice of such rul- 
ings as the above, a word concerning the law governing 
the situation is necessary. The frequent attempts to de- 
stroy patents in order to appropriate the inventions de- 
scribed therein, by trying to show by oral testimony that 
the same or a very similar apparatus was in use prior to 
the making of the invention by the patentee, led the United 
States Supreme Court to lay down the following rules of 
law for the express purpose of protecting patentees. 

"In view of the unsatisfactory character of such [oral] testimony, aris- 
ing from the forgetfulness of witnesses, their liability to mistakes, their prone- 
ness to recollect things as the party calling them would have them recollect 
them, aside from the temptation [receiving compensation] to actual perjury, 
courts have not only imposed upon defendants the burden of proving such 
devices, but have required that the proof shall be clear, satisfactory and beyond 
a reasonable doubt. 

"Indeed, the frequency with which testimony is tortured, or fabricated 
outright, to build up the defense of a prior use of the thing patented, goes far 



24 The Patent Law and Its Administration 

to justify the popular impression that the inventor may be treated as the lawful 
prey of the infringer." (143 U. S. 275, 285.) 

"Granting the witnesses to be of the highest character, and never so con- 
scientious in their desire to tell only the truth, the possibilities of their being 
mistaken . . . are such as to render oral testimony peculiarly untrust- 
worthy; particularly so if the testimony be taken after the lapse of years from 
the time the alleged anticipatory device was used, and if there be added to this 
a personal bias, or an incentive [promise of compensation] to color the testi- 
mony in the interest of the party calling the witness, to say nothing of down- 
right perjury," etc. (15s U. S. 286, 301.) 

One of the circuit judges has stated the same rule of 
law, as follows: 

"The rule applicable to this defense [alleged prior use] is as axiomatic aa— - 
a similar rule of the criminal law, . . . that it is a defense which must 
be established beyond a reasonable doubt." (105 Fed. Rep, 242.) 

Mr. Justice Blatchford, one of the greatest of our pat- 
ent judges, had occasion while a district judge to apply 
the above rule in a case wherein a wealthy defendant, when 
sued as an infringer, tried to prove by the oral testimony 
of witnesses and data prior knowledge and use of the pat- 
ented device, but the patentee introduced the defendant's 
catalogs, circulars, etc., showing a complete absence of 
any mention of the patented device at the times in ques- 
tion, while they described and offered for sale other and 
inferior devices. Judge Blatchford held that the documen- 
tary evidence of these publications was absolutely controll- 
ing, and overcame the oral testimony of witnesses. That 
^decision, laying down the principle that it is incompetent 
lor a defendant attempting to destroy a patent to satisfy 
the rule of law, "as axiomatic as a similar rule of the 
criminal law," that the evidence must carry conviction 
''beyond a reasonable doubt/' by the oral testimony of wit- 
nesses that the apparatus was made or sold by the defend- 
ant, which is inconsistent with and contradicted by the 
contemporaneous catalogs, circulars, etc., of the defend- 
ant, has remained to this day without being questioned 
even by a trial court. 

When it is said in any given case that the law is in 
favor of the plaintiff, or that it is in favor of the defendant, 
it is meant merely that there is an inference or conclusion 
of right in favor of that party based upon certain facts 



AsAidstoMonopoly 25 

which are admitted or found to be true. In every suit 
there are always a very few material facts (often but one) 
which when found to exist demand that judgment be given 
for the party in whose favor such facts are found. Where 
the judge decides the facts as well as the law, as in every 
equity suit on a patent, he can favor either party with his 
decision by merely suppressing or perverting some one (or 
very few) material fact in the opposite party's favor, or 
by arbitrarily finding that a material fact exists in a party's, 
favor, as for instance by allowing a corporation to contra- 
dict the evidence contained in its own contemporaneous pub- 
lications by oral testimony of witnesses (hired), and then 
suppressing all reference to such documents, and even de- 
claring that there is nothing in the record to impeach the 
oral testimony. Still another way in which the same result 
can be effected is for the judge to declare in his opinion 
that the patent sued upon is substantially the same as some 
old patent that was before the public for years, that never 
went into use, that never added anything of value to the 
art, and which the Patent Office experts recognized as hav- 
ing no essential relation to the patent in suit, simply because 
the party to whom he wishes to give his decision has hired 
one or. more witnesses to swear that the old patent was 
substantially the same as the new. And in either of these 
cases he prevents any error of law from appearing on the 
face of his opinion and so avoids detection. Moreover, to 
avoid the unnecessary expense of printing the catalogs, 
pamphlets, etc., of a party, they ^re usually introduced as 
exhibits or exhibit model^ and are read or referred to or 
quoted from in the arguments and briefs. As soon as the 
case is finally decided the court orders these exhibits to 
be destroyed unless counsel remove them within thirty days. 
When a corporation is permitted to hire witnesses to con- 
tradict by oral testimony the indisputable evidence contained 
in its own contemporaneous publications, and the judge 
gives that concern his decision by concealing from his opin- 
ion all reference to those documents (instance, supra), 
nobody can by examining the records on file in the court 
discover the judge's conduct, because those documents have 



26 The Patent Law and Its Administration 

been either destroyed or removed, and this practice greatly 
aids in making detection impossible. 



THE COURTS AND THE INTERESTS 

UNDER such circumstances as related above there is 
nothing left for the inventor to do but to turn over 
his patent and all the results of his many years' efforts to 
the big corporation on its own terms. (We sliall speak 
below of the writ of certiorari.) But we do not intend to 
imply that an inventor striving to uphold his patent will 
meet with such treatment <as we have detailed above in all 
the circuit courts of appeals, for no doubt many of the 
judges of those courts will make every conscientious effort 
to decide cases fairly, so far as their qualifications, limited 
within a narrow compass of study and experience, will per- 
mit. With so many courts before which the owner of a 
patent may take his case, he cannot be sure of the treatment 
he will receive in any one ; but the big corporation knows, 
and its managers, having choice of several circuits in which 
to prosecute a suit on a patent, will choose circuit A in- 
stead of circuit B, and, if asked why, will answer: "We 
like the judges of the court of appeals of circuit A better 
than we do those of circuit B." 

Regarding wrongs which are more particularly trace- 
able to the coiirts, and those which independent inventors 
especially suffer, we may quote the following: 

"The interests have retreated into the courts. Beaten in legislatures and 
executive offices they are going to make their last stand behind the judiciary." 
—The late Tom. L. Johnson. 

"With all my respect for the courts, I do not feel that they are so holy 
that they are incorruptible. There are judges who have served corporate inter- 
ests so long that they can't see straight." — Senator La Follette in a recent 
speech. 

"The next most important corruption to be eKminated is the control of 
the executive and judiciary. They [business interests] are especially keen at 
present to own the judges. We have been taught to hold the judiciary in 
great reverence. But the federal judiciary, particularly in the lower branches, 
has not alAvays been entirely free from the domination of the avaricious," — 
Senator Bristow, Columbian Magazine, September, 191 1. 

"The fact is, Mr. President, that the railroads and special interests of 
this country make themselves extremely busy about appointing judges on the 
bench, * * * 

"Moreover, judges on the bench, being merely human beings after all. 



AsAidstoMonopoly 27 

are themselves controlled by their environment, by their professional educa- 
tion, by social, political and business influences." — Senator R. L. Owen. 

"But at the present time the Church is, on the whole, allied with the 
great interests. It is their ally and not the defender and protector of the 
poor. 

"And here we come to the corruption of politics, the commercialization of 
politics for the promotion of business. We have been shocked and startled, 
until we have become almost callous to such things, by the revelations of 
political immorality, of the venality of the voters on the one side, and on 
the other side of the ingenuity and boldness of business interests in purchasing 
votes and controlling legislatures, administrative officers and courts." — Rev. 
John P. Peters in a recent address. 

"As to wealthy corporations, it has become obvious that the skillful hand- 
ling of patent cases places them at an untold advantage against their smaller 
competitors. For them, a well-organized patent department is a reliable ma- 
chine, where money is the lubricant. This machine, in its slow but sure 
grinding way, can reduce to pulp any of the smaller competitors. For large 
corporations, the maintenance of such a machine with a staff of lawyers and 
experts, is merely a small side expense. By its aid they can bluff their 
weaker competitors into quick submission. If this is not successful, they can 
drag out a patent suit indefinitely, until the weak opponent, unable to bear the 
ever-increasing expenses, collapses and withdraws. 

"These tactics are well known, and have been played successfully, whether 
it was to uphold a worthless patent or to obtain immunity in case of infringe- 
ment. In every case the wealthy corporation is sure of the outcome of the 
game, and plays 'Heads I win, tails you lose.' " — President American Institu- 
tion of Chemical Engineers. 

"Under existing methods of trying patent causes an inventor-patentee of 
average means could not, at his own expense, carry to a conclusion an average 
patent litigation against a wealthjr opponent, and therefore a few wealthy con- 
cerns usually acquire nearly all important patents in their field, to the great 
damage of the Nation, because of the restraint of competition and because of 
the resulting tendency of such inventors to seek protection for their inventions 
by trade secrets or else to cease inventive work." — Inventors' Guild. 





NINE CIRCUIT COURTS OF APPEALS 

PRIOR to 189 1 all suits for the infringement of patents 
could be appealed to the United States Supreme Court 
for final decision, but in that year an act of Congress was 
passed creating in each of the nine circuits into which the 
country is divided a ''Circuit Court of Appeals," to consist 
of three judges and to hear and finally decide (among other 
cases) all appeals in patent suits arising within the states 
constituting that circuit. These nine circuit courts of ap- 
peals are just as independent of one another as are the 
courts of last resort in the several states of the Union. 
At the time these courts of appeals were established it is 
doubtful if any other motive was present than a sincere 
desire to relieve the Supreme Court of an ever accumulat- 
ing burden of cases, but the large manufacturing corpora- 



28 The Patent Law and Its Administration 

tions and trusts were not long in discovering how perfectly 
they were adapted to enable them to appropriate the work 
of independent inventors on their own terms, and they have 
taken full advantage of their opportunities. 

The creating of nine courts of appeals, each to be a 
court practically of last resort in those patent cases which 
arise within that particular circuit, could have no other re- 
sult than the great confusion and lack of uniformity in 
their decisions now so apparent. The result has been simi- 
lar in kind to that which would follow if all the states of 
the Union could be divided into three groups and three of 
the Justices of the Supreme Court assigned to decide all 
cases on appeal arising within each group of states, so that 
instead of one Supreme Court we should then have three 
divisions of that court, each independent of the others. 

A still more serioiis objection is that it has been gen- 
erally recognized, as a fundamental principle of our judicial 
system, that a court of appeals of practically last resort 
for the determination of issues of great importance having 
but three judges is neither competent nor safe. One or two 
or all three judges may be novices and utterly inexperi- 
enced in the kind of issues to be decided, and this is usually 
so in patent cases; and if two of the judges ha>e had ex- 
perience, their relations of friendship and mutual respect 
may be such that the writing of the opinion may be as- 
signed to one while the other (with the inexperienced 
judge) merely assents, without taking the trouble individ- 
ually to give the case serious consideration ; qr one of the 
judges may possess such dominating personality that he 
may be able to silence all opposing views ; so that the de- 
cision is in effect a decision by one judge (instance, ante). 
With but three judges, also, the danger of improper in- 
fluence is too great. It is needless to attempt to enumerate 
all the means and channels through which this influence 
upon judges is wielded or attempted (excluding here .all 
reference to direct bribery), for they are never known. 
Cultivating personal acquaintance and friendship, praise 
for their wisdom upon the bench, readiness to recommend 
and work for their promotion to higher or more lucrative 



AsAidstoMonopoly ' 29 

positions, reminders or knowledge of similar favors ren- 
dered in the past, quietly suggesting opportunities for profit- 
able investments, these are only some of the commonest 
forms. The following from a recent lecture of Sir Fred- 
erick Pollock at Columbia University is pertinent: 

"Powerful interests may be arrayed against the law. . . . Their aim 
is, if possible, to capture its machinery and use it for their own purposes. 
Chicane and corruption are their weapons. . , . Intimidation is employed 
more sparingly, not from moral scruple, but because it is less profitable and 
provokes defensive combination; and when it is employed it is in the form of 
social and -financial pressure." 

We insist that our United States Supreme Court shall 
have nine Justices, and they are anxious to have every cause 
argued before a full bench. AH the United States special 
courts, such as the Court of Claims, the Court of Customs 
Appeals and the Commerce Court, have five judges each. 
The Court of Appeals of the State of New York has seven 
judges, who strive to have all the members sit at the argu- 
ment of every cause; and each of the Appellate Divisions 
of the State Supreme Court has five judges (seven in New 
York City, with five sitting together). The nine United 
States Circuit Courts of Appeals, each having but three 
judges, are an anomaly as federal courts of practically last 
resort for the decision of cases involving issues of the 
largest importance. 

The incongruities and contradictions, not to say bia^ 
and favoritism, which appear among the decisions in these 
nine courts of appeals in patent cases are too well known 
to require comment, for they amount to little short of a 
scandal upon the administration of justice. A very few 
illustrations will suffice. 

In one case suit was brought for infringement of a pat- 
ent for a mechanical apparatus which included a motor as 
part of the combination to operate the apparatus. Two 
motors, A and B, were known at the time and both were 
suitable for the purpose. The inventor selected motor A 
and adapted it for use in his combination, and the Court 
of Appeals declared that his patent was valid and entitled 
to a reasonable range of equivalents, or to a reasonably 
broad construction. Other manufacturers, to avoid paying 



i 



J 



30 Th^e Patent Law and Its Administration 

the inventor royalties, discarded motor A from the com- 
bination and substituted motor B • and the court held that 
they did not infringe the patent. 

In another case the patent sued on related to two hollow 
pieces of metal and a union nut for coupling them together. 
For many decades this construction had been employed in 
which the two pieces had been made both of brass and of 
iron, in one form, A, and coupled together with a washer 
or gasket between them, and in another form, B, and 
coupled together without a gasket between them; and they 
had also been made and used, one of brass and the other 
of iron, in both of these forms. Still, both the circuit court 
and the court of appeals held the patent valid and infringed ; 
but the patent was owned by one of the large manufactur- 
ing trusts and its counsel having the matter in charge 
brought the suit in that circuit where its principal works 
were located and where its officers and attorneys were in 
almost daily contact and friendly association with the 
judges. 

• [The last paragraph was written before any charges were 
openly made against any of the judges responsible for the 
decision referred to, but since it was written one of the 
judges principally responsible for that decision has been 
placed under impeachment before the Senate on charges 
of official misconduct in other matters not having to do 
with patent suits. We may now add, that since the preced- 
ing sentence was written, the Senate has found that judge 
guilty and removed him from the bench. But the two sena- 
tors from his state, representing the same "interests" which 
secured his appointnient to the bench, were among the five 
who voted *'not guilty."] 

In another case the patent sued upon was owned by a 
corporation, and in the court of appeals the writing of the 
opinion was first assigned to a judge who was a complete 
novice, and he tore the patent into pieces, declaring it had 
not been infringed, the other two judges apparently giving 
the matter no attention. The owner of the patent, whose 
stockholders included many business men of prominence, 
moved for a rehearing and reargument, alleging errors on 



As Aids to Monopoly 31 

the part of the, novice judge, and one of the more expe- 
rienced judges thereupon wrote a new opinion, tearing the 
opinion of the novice judge into pieces, and holding the pat- 
ent valid and infringed. Both opinions appear together in 
the law report. 

In another case President Taft, while a circuit judge, 
delivered the opinion of the Circuit Court of Appeals of 
the 6th circuit (55 Fed. Rep. 69, yy^, in which, with the 
best intentions, no doubt, but inexperienced in patent law, 
he laid down the erroneous proposition of patent law that 
an inventor, in order to maintain his rights against a later 
inventor of the same apparatus, must "show that jrom the 
time of his original conception * * * he was using 
reasonable diligence in adapting and perfecting his idea to 
practical use." For several years that decision was freely 
quoted by lawyers whose purpose it served and it had an 
unsettling effect upon that branch of the law, and had it 
been generally adopted would have deprived hundreds of 
meritorious and first inventors of their rights to their pat- 
ents ; because the correct rule of law is that the first in- 
ventor must show reasonable diligence, not from ''the time 
of his original conception" of his invention, but from a time 
just previous to the conception of the invention by the sec- 
ond inventor. Fortunately, the experts of the Patent Office 
quickly saw the error in that decision 'and declined to fol- 
low it, as did the Court of Appeals of the District of Co- 
lumbia, and we believe it has not been followed by any 
of the other circuit courts of appeals. 

Perhaps the following shows as ludicrous a situation as 
any revealed by the present motley system. 

Suit was brought on a patent in one circuit and the 
three judges of the court of appeals of that circuit united 
in declaring the patent void. Suit was then brought on the 
same patent in another circuit, and the three judges of that 
court of appeals united in declaring the patent valid. The 
matter was then taken before the United States Supreme 
Court to determine which of these two courts of appeals 
was right, and before the case could be reached two of the 
judges (including the writer of the opinion) of the court 



32 The Patent Law and fts Administration 

of appeals who declared the patent void had become mem- 
bers of the Supreme Court. They took no part in the de- 
cision in that court, but the other seven Justices unani- 
mously held that the patent was valid. __ 

It is scarcely to be conceived that any such decisions 
could have been rendered by a competent court of patents 
appeals composed of seven judges, all having an intimate 
knowledge of patents and of the various arts to which they 
relate, and thoroughly trained for their special work 
through years of experience in the Patent Office before 
becoming judges, as we shall point out infra. 



PATENTS IN THE SUPREME COURT 

THE statute creating the nine circuit courts of appeals 
gives the party against whom a decision is rendered 
in one of them the right to petition the United States Su- 
preme Court (technically called a petition for a writ of 
certiorari) , for permission to appeal to that court, because 
Congress evidently foresaw that numerous errors must be 
made by these courts of appeals, each composed of but three 
judges (sometimes of but two where the third is indis- 
posed or not available). During the first few years after 
these circuit courts of appeals were established and while 
Mr. Justice Brown (undoubtedly one of our greatest patent 
judges) was still a member of the Supreme Court, a more 
liberal rule was followed in allowing appeals (writs of cer- 
tiorari) to that court. In two such cases of importance, 
wherein appeals were allowed, Mr. Justice Brown delivered 
the opinions of the court, holding in each case that the 
patent sued on was valid and had been infringed, and in 
so doing affirmed the decision of one circuit court of ap- 
peals in one case and reversed the decision of another of 
said courts in the other case. So far as these two cases 
afford the criterion for our conclusion, they indicate fifty 
per cent, of error in the circuit courts of appeals, and there 
is no reason whatever for saying that, had all other patent 
decisions rendered by those courts been appealed to and 



AsAidstoMonopoly 33 

decided by the Supreme Court, one-half of those, even in 
which all the judges sitting in the several courts of appeals 
concurred, would not have been reversed. 

Again, in one of these circuit courts of appeals (called 
for convenience court of appeals A), which has had many 
patent cases to decide, four decisions were rendered in as 
many cases construing four patents which also became the 
subjects of suits decided in one or another of the other cir- 
cuit courts of appeals and in which said patents received 
a different construction from that given to them by court 
of appeals A. The cases were then appealed to and de- 
cided by the Supreme Court, who sustained court of ap- 
peals A in one case and reversed it in three cases. This 
shows 75 per cent, of error in those cases by court of ap- 
peals A, and there can be no kind of proof that if all the 
decisions of that court of appeals in patent cases could have 
been appealed to the Supreme Court, three-fourths of them 
would not have been reversed. 

Speaking from the above six cases as a basis, which are 
fairly representative and in which the circuit courts of ap- 
peals were right twice and wrong four times, the writer 
hereof has no hesitation in saying, that, considering only 
those patent suits which the Supreme Court would ulti- 
mately decide in favor of inventor-clients, could they be 
appealed to that court, he would prefer, rather than subject 
such clients to the long delays, expenses and dangers of ad- 
verse decisions through ignorance or influence in the circuit 
courts of appeals, to go at the outset with opposing counsel 
before a judge and have each case decided by the toss of a 
coin, and particularly where large business interests are ar- 
rayed upon the other side. Outrageous as it may seem, it is 
nevertheless true that the great army of struggling, inde- 
pendent inventors would be better off and their rights under 
their patents be more secure if they had the authority to 
summon the large corporations before a court (still con- 
fining our remarks to those cases which the Supreme Court, 
could it be appealed to, would finally decide in their favor), 
and have the questions of the validity and infringement of 
their patents decided by tossing a coin ; because they would 



'j^ 



34 The Patent Law and Its Administration 

then at least stand an equal chance of winning where they 
are entitled to win, whereas at present they are in nearly 
all cases, so long as they retain ownership of their patents, 
precluded by delays and expenses and cunning from even 
getting into court and having a hearing. 

More recently the Supreme Court, with an ever increas- 
ing number of cases on their overcrowded calendar, have 
construed the act referred to more strictly, and in their 
later decisions have declared : ''The statute makes the de- 
cision of the Circuit Court of Appeals final in patent cases." 
As said act is now construed, there is little need of striving 
to secure an appeal to the Supreme Court except in cases 
where the same patent has been differently construed by 
two circuit courts of appeals, or some extraordinary situa- 
tion arises. There is no chance of securing an appeal where 
the party has no other reason to assign than that the de- 
cision of the court of appeals was erroneous, no matter 
what caused that erroneous decision, for the Supreme Court 
will regard all statements in the opinion of the court of 
appeals as final, no matter how false they may be in reality. 
The fact, therefore, that a petition for an appeal (certiorari) 
to the Supreme Court has been filed and denied in any given 
case carries no presumption that that court approves the 
decision; it means merely that they have declined to allow 
the case to be discussed before them, because, as they have 
said, "the statute makes the decision of the Circuit Court 
of Appeals final in patent cases." 

'■ We may here add, however, that even in petitioning the 
Supreme Court for this last opportunity to maintain what 
he believes to be his rights (and what that court would so 
decide could it be appealed to), the bars are up against the 
poor man. This petition, with all exhibits and arguments, 
must be submitted in writing, and they are prepared and 
forwarded to the clerk of the court, who examines them, 
and if in proper form files them and places the case on the 
motion calendar. But instead of allowing the clerk to hand 
the papers to the court, the dignity of the situation de- 
mands that this momentous labor can be performed only by 
some counsel in person, who, accordingly, takes the papers 

( 



AsAidstoMonopoly 35 



from the clerk, announces to the court that he desires to file 
them in the given case, without being permitted to speak 
another word, and, frequently knowing nothing of what 
the papers contain, hands them back to the clerk and levies 
his fee. To avoid the expense of sending counsel to the 
capital, some Washington attorney must be engaged to pre- 
sent these papers to the court, and the usual fee is fifty dol- 
lars, which a poor litigant may be able to pay only by bor- 
rowing. A word from the Chief Justice would be sufficient 
to enable the clerk to hand this petition to the court and 
stop this current of needless tribute flowing into the pockets 
of some Washington lawyers. 



GREAT PATENT JUDGES OF THE SUPREME COURT 

THE difference between the Supreme Court and one of 
the nine circuit courts of appeals is far greater than 
that between nine judges and three judges, for it is the 
difference between nationality and locality. The nine groups 
or circuits into which the States of the Union have been 
divided, according to locality, include a New England cir- 
cuit, three middle Atlantic circuits, a southern circuit, three 
Mississippi Valley circuits and a Pacific circuit. The peo- 
ple of each circuit have their own peculiar traits of char- 
acter and thought, which differ at certain points quite radi- 
cally from the corresponding traits of the people of other 
circuits. The Supreme Court is composed of nine justices, 
one of whom is assigned to each of these nine circuits. In 
theory, at least, one justice should be, and usually has been, 
chosen from those who represent the highest professional 
and moral standards in each circuit, so that when they are 
brought together into the Supreme Court they may repre- 
sent the highest professional and moral standards of every 
section of the country and constitute both in name and in 
fact a court truly representative of the national character. 
A tendency has of late years been observed to depart from 
the above rules, until recently one circuit (sixth) had three 
representatives in the court, another (fifth) had two, while 



36 The Patent Law and Its Administration 

three circuits (third, fourth and seventh) had none, and 
at the present time two circuits (fifth and sixth) have two 
representatives each, while two (fourth and seventh) have 
none; but it is beHeved that in so far as such a practice 
prevails in just so far is the Supreme Court weakened both 
in power to correctly interpret the public will and in ability 
to command the fullest public confidence of all sections of 
the country. It is certain that such practice tends to de- 
prive the court of its truly national quality and to make 
it assume more of the local quality. The court of appeals 
of every circuit is purely local and in no sense national. 

But mere numbers alone could not have given the Su- 
preme Court the great efficiency they have shown as a pat- 
ents court. Two qualifications are necessary for a success- 
ful judge in patent cases, in addition to all the implied 
qualifications of education, honesty and impartiality, and 
these must exist in extraordinary degree if the judge would 
be. more than an intelligent guesser. One of these qualifica- 
tions is an instinctive or intuitive (not merely acquired) 
knowledge of mechanics (since most patents relate directly 
or indirectly to mechanics), or an instinctive or intuitive 
ability to perceive the mathematical relations of things 
(mathefnatics forms the ultimate basis of all the subject- 
matter of patents) ; and the other is an inherent belief in, 
and sincere devotion to, the principles of the patent law and 
the public policy embodied therein, with such resolution to 
uphold and advance both of these as can only come from 
strong sympathy with the work which inventors do and 
appreciation of the benefits which they confer upon society. 
The justices of the Supreme Court, drawn as they usually 
have been (and always should be) from every section of 
the country, and representing, both in theory and in actual 
fact (within every fair and reasonable expectation), the 
best of the nation's intellectual and moral qualities, have 
included among their numbers at practically all times (as 
was to be reasonably expected) at least one justice who 
possessed the foregoing qualifications in amplest degree; 
and the Supreme Court owe practically all the credit they 
have earned for their great efficiency in the decision of 



AsAidstoMonopoly 37 

patent cases almost entirely to those justices who have been 
few in number (they can be named almost on the fingers 
of one hand), but of commanding intellect and endowed 
in extraordinary degree with the qualifications which we 
have recited above. It scarcely need be added that such 
things as wielding undue influence with this great national 
court, or inducing them to uphold and follow the oral testi- 
mony in a party's favor, and to ignore such contradictory 
and conclusive evidence as that contained in that party's 
own publications, first, by declining to refer to such publica- 
tions, and, second, by declaring that no such evidence is in 
the record (as in instance described, ante), are utterly un- 
thinkable. 

- EXPOSURE OF THE SYSTEM 

WHY have not the wrongs and injustice to inventors 
of the present system been exposed heretofore? 
Laymen, while able to appreciate these wrongs and injus- 
tices, have not had the experience either to understand the 
reasons or to suggest adequate remedies therefor. Such 
suggestions can only come from lawyers who have had inti- 
mate contact with the system. "Lawyers are steeped in 
tradition, intolerant toward reform, stoHd to change." The 
distinguished members of the bar are usually employed by 
the big corporations (which makes them distinguished), 
who serve their clients' interests and have no intention of 
criticizing a system which enables them to completely emas- 
culate the patent law for the double purpose, first, of pre- 
venting independent inventors from gaining headway 
against the interests which they represent, and, second, of 
enabling their clients to appropriate the work of those in- 
ventors on their own terms or at the cost of possible litiga- 
tion. There are several reasons why no lawyers have either 
cared, or dared, to expose the wrongs of the system or to 
speak in criticism' of the federal courts, among which may 
be mentioned, i, danger of contempt of court and disbar- 
ment; 2, fear of loss of standing in the profession througli 
denunciation by the distinguished counsel of the large inter- 



38 The Patent Law and Its Administration 

ests and their clients; 3, the belief so common that it is 
better to submit to wrong to others than by opposing wrong 
to bring possible trouble to self; 4, only a professional 
and not a personal interest in the issues; and, 5, the hope 
eternal that at some time in the future they, too, may be 
employed by the big corporations and become distinguished. 
We shall speak here more particularly of the first of these. 

The federal courts, so far as concerns the rights of per- 
sons to practice therein, are hke private possessions of the 
judges, who have the exclusive right to say who shall be 
permitted to practice in these courts, and when and for 
what reasons they shall be disbarred, or proceeded against 
for contempt. There are two exceptions : i. Congress has 
passed an act giving to every litigant the right to appear 
and conduct his own case in any federal court, and, 2^ it 
has by another act given to women possessing certain quali- 
fications and experience the right to practice before the 
Supreme Court; but it has not given women the right to 
practice before any other court, nor has it given men the 
right to practice before any federal court except as the 
judges may permit; and the judges can disbar any attorney 
when they feel that their dignity has been offended, or that 
their competency or their integrity has been challenged. 

Congress by the judiciary act of 1789 authorized fed- 
eral courts to inflict punishments for contempts, leaving it 
to the judges' discretion to determine what acts they would 
consider contempts. Owing to the arbitrariness of some 
of the judges in inflicting punishments for alleged con- 
tempts (resulting in the impeachment of Judge Peck in 
1831), Congress in that year passed another act carefully 
defining what shall constitute contempts of court and limit- 
ing the judges' right to punish for contempts by fine or 
imprisonment to the three cases specified in the act. This 
act affords a certain protection to citizens and counsel alike 
from punishment for contempt of court, but there is no 
statute giving the slightest protection to an attorney from 
disbarment because of any criticism which he may have 
passed upon a court or judge. In all the proceedings of 
oiir courts that are reported in law books it is doubtful if 



AsAidstoMonopoly 39 

anything can be found showing a more reckless disregard 
of human rights, a clearer desire for personal revenge, if 
not, indeed, bitter spleen and vindictive malice, than have 
been shown by some federal judges in their attempts to dis- 
bar lawyers who had offended their dignity or impugned 
their judicial conduct. A number of these cases were taken 
on petition to the Supreme Court, who in several instances 
issued their mandamus directing the judges below to vacate 
the orders of disbarment and restore the attorneys to their 
former status, for the sole reason that the judges lacked 
jurisdiction, but denied the attorneys relief in every other 
case. 

In one case a federal judge of the territorial court of 
Minnesota disbarred an attorney just prior to adjourning 
court for several months, without notice to him of any 
charges against him, or that disbarment was threatened, or 
that an order of disbarment had been entered, and he only 
learned of his disbarment* several months thereafter. He 
applied to the Supreme Court for relief, but that court by 
its then Chief Justice, Taney, denied his request, declaring 
that in the Uaited States courts "the relations between the 
court and the attorneys and counsellors who practice in it 
and their respective rights and duties are regulated by the 
common law" ; and ''by the rules and practice of the com- 
mon-law courts that it rests exclusively with the court to 
determine who is qualified to become one of its officers, as 
an attorney and counsellor, and for what cause he ought 
to be removed." (Ex p. Secombe, 19 How. 9.) 

In another case an attorney, because of his conduct 
toward the judge during a criminal trial, was disbarred after 
notice and hearing. The Supreme Court granted his "'re- 
quest for relief on the ground that the judge below was 
without jurisdiction in that particular case, but they re- 
affirmed their previous declarations that it rests entirely 
within the discretion of a judge to say whether an attorney 
should be disbarred or not and that the Supreme Court 
has no power to control that discretion. After stating that 
an attorney cannot appeal from an order of a judge dis- 
barring him and have the merits of his disbarment de- 



40 The Patent Law and Its Administration 

cided, and that a petition for a mandamus is his only rem- 
edy, the Supreme Court referred to "the abuses of the in- 
ferior courts against their officers" (attorneys), and to the 
''flagrant wrong" sometimes committed against them, and 
declared : 

"The attorney or counsellor, disbarred from caprice, prejudice or pas- 
sion, and thus suddenly deprived of the only means of an honorable support of 
himself and family upon the contrary doctrine contended for, would be utterly 
remediless. It is true that this remedy [mandamus], even when liberally ex- 
pounded, affords a far less effectual security to the occupation of attorney 
than is extended to that of every other class in the community. For we agree 
that this writ does not lie to control the judicial discretion of the judge or 
court." — (Ex p. Bradley, 7 Wall., 364, 376-7.) 

In another case an attorney, having been illegally dis^ 
barred, applied to the Supreme Court for relief and his 
request was granted. But the court reaffirmed their pre- 
vious statements, that whether an attorney shall be dis- 
barred or not depends wholly upon the discretion of the 
judge. It was in this case (Ex p. Robinson, 19 Wall., 505) 
that the Supreme Court stated that every federal court has 
the inherent or incidental right, derived from the fact, and 
at the instant, of its organization as a court,«to punish for 
contempts (and to disbar attorneys), within the judge's 
discretion, and that such right does not depend upon con- 
stitutibn or statute. They further declared that the act of 
Congress Hmiting the power of federal courts to punish for 
contempt was binding upon all the inferior courts, but 
"whether it can be held to limit the authority of the Su- 
preme Court, which derives its existence and powers from 
the Constitution, may perhaps be a matter of doubt." This 
position of the court appears to be illogical, because, if the 
inferior courts have the inherent or incidental right to pun- 
ish for contempt and to disbar attorneys without such right 
being conferred by an act of Congress, how can the Con- 
gress take from the courts that right which they possess 
independently of its being conferred by Congress without 
destroying those courts? The court also pointed out the 
fact that the power to disbar attorneys is altogether differ- 
ent from the power to punish them and others for contempt, 
and that while "the law happily prescribes the punishment 



AsAidstoMonopoly 41 

which the court can impose for contempts," there is no 
statute Hmiting the power of judges to disbar attorneys, 
which depends wholly upon their discretion. Moreover, 
the courts rule that a proceeding to disbar an attorney is 
a civil proceeding, while a proceeding to punish for con- 
tempt is a criminal proceeding. When an attorney charges 
a judge with misconduct under such circumstances as pre- 
vent a proceeding to punish him for contempt, he can still 
be summoned before that judge in a proceeding to disbar 
him; and if he then attempts to justify by asserting the 
truth of his accusation, he must make his charges in court 
before that very judge, who can then presumably (this mat- 
ter has not yet been decided), acting as prosecutor, judge 
and jury, both disbar the attorney and send him to jail or 
impose a fine within his discretion for contempt. 

While not germane to the purpose of the present article, 
a most interesting question arises in connection with "con- 
tempt" in the Supreme Court. In construing the act of 
1 83 1, ex p. Robinson, supra, they declared that they (and 
all federal courts) possess the inherent or incidental author- 
ity to punish for contempt and disbar attorneys without ob- 
taining such authority from Constitution or Congress. If 
that be so, it follows that this inherent right to impose pun- 
ishment is unlimited (for instance, a fine may be imposed 
sufficient to exhaust the party's property and imprisonment 
practically equal to a life sentence), except as it may be 
limited either by the voluntary action of a majority of the 
court, or by constitutional or statutory enactment. If, now, 
the Congress has no authority to limit this power of the 
Supreme Court (conceding such authority as to all inferior 
courts), of which they declare there may be doubt, it be- 
comes an interesting question, whether our forefathers, 
when they formulated the Constitution and put it into 
operation (followed almost immediately by ten amendments 
to safeguard most carefully their personal rights), with the 
determination foremost in their minds that no provision 
thereof should contain a menace to their liberty or their 
property, have actually established (by Constitution and 
Congress) at the seat of government a tribunal of nine 



42 The Patent Law and Its Administration" 

members, five of whom possess the inherent and indepen- 
dent power, first, to determine what acts or words they 
will deem a contempt of their authority or their dignity as 
judges, and, second, what amount of fine and what term 
of imprisonment they will impose upon the person who 
offends ; and whether the people of the United States have 
deprived themselves of the right to limit this otherwise 
unlimited power of these five men (a majority of the tri- 
bunal), by act of Congress or in any other manner save 
by amendment of the Constitution. It is no answer to cite 
the provision prohibiting the infliction of cruel or unusual 
punishments, because the very men who would impose the 
punishment would thereby declare that it was not cruel and 
unusual for the offense of contempt of themselves. Neither 
is it an answer to say that the justices will never exercise 
this authority. The question is : Do they possess this 
power as an inherent or incidental right over the liberty 
and the property of every citizen of this country, inde- 
pendently of anything in the Constitution or in any statute? 
They have asserted that they do, and that there may be 
doubt about the authority of Congress to limit it. 

Whence came this inherent or incidental power of fed- 
eral judges to punish for contempts and to disbar attorneys 
whenever they feel that their judicial dignity has been of- 
fended or that their good faith or integrity has been ques- 
tioned? For answer we must go to the dark ages of Eng- 
lish jurisprudence. When the English kings, for several 
centuries following the Norman conquest, asserted that they 
ruled by divine right and made the people believe it, they 
appointed and removed judges at their pleasure and be- 
stowed upon them just so. much of their own divine author- 
ity as they deemed necessary to enable the judges to dis- 
pense the king's justice, without permitting encroachment 
upon his authority and prerogatives, and actually sat with 
the judges in the superior courts to assist them in arriving 
at correct decisions. The king did not allow judges to pun- 
ish for contempts nor to disbar attorneys for offenses 
against themselves as judges, but only for offenses against 
his own sacred person; because, when the king was not 



A sAidsto Monopoly 43 

actually present in a superior court he was always construc- 
tively present, and, hence, an offense against such a court 
was a personal offense against the king. Now, the king 
did not deign to take his sacred person into any of the 
inferior courts, so that no offense against his person could 
be committed in any inferior court, and, hence, the judges 
of those courts had no authority to punish contempts nor 
to disbar attorneys. 

There were special reasons why the king should give 
his judges these powers over attorneys. While some law- 
yers were always the most subservient tools of royal op- 
pression, others were its bitterest foes and the most effec- 
tive advocates of popular rights. In order that these trou- 
blesome lawyers might be held in check and their opposition 
to the king stifled, he gave his superior judges authority to 
punish them for contempt or to disbar them at their dis- 
cretion, in his name and as his agents. That power which 
the English kings conferred upon their superior judges cen- 
turies ago the early colonial judges brought with them to 
America with the rest of the English legal system, and it 
was assumed as an inherent right by our federal judges at 
the organization of our government. (See ante, re act of 

1789.) 

Why should any federal judge have such authority to 
act as accuser, court and jury in his own cause with power 
to disbar and ruin the career of any attorney who offends 
hini or who dares in good faith to expose what he has just 
ground for believing to be misconduct or even dishonesty 
on the judge's part? Why should not the attorney, at least 
if prepared to make an affidavit that the judge writing the 
opinion below was guided by ignorance, or by favoritism, 
or by dishonesty, have his charge tried before an impartial 
court and why should he not have a right to appeal to the 
Supreme Court or other competent and disinterested tri- 
bunal and have the right and merits of the judgment by 
which the tremendous penalty of disbarment and disgrace 
has been inflicted upon him passed upon, and not merely 
the question of whether a judge who has disbarred him 
had jurisdiction of the case? Congress has passed a statute 



IfVllliPBP 



44 The Patent Law and Its Administration 

specifying those acts for which alone federal judges may 
inflict punishment as for contempts. Why should it not 
also limit the power of those judges by specifying those 
acts of attorneys which alone shall constitute causes for 
disbarment, and then only when the attorney's charges are 
proven to be groundless before an impartial tribunal ? This 
is particularly pertinent in view of the following declara- 
tions of the Supreme Court: 

"Happily the law prescribes the punishment which the court can impose 
for contempts." — (19 Wall. 512.) 

"It is true that this remedy [mandamus, the only remedy against dis- 
barment], even when liberally expounded, affords a far less effectual security 
to the occupation of attorney than is extended to that of every other class in 
the community." — (7 Wall. 376.) 

It is undoubtedly the knowledge, that they have this power 
to effect the disgrace and ruin of attorneys that makes 
judges so indifferent to criticism, and that makes lawyers so 
timid and often cowardly in exposing wrong or dishonesty 
in the federal courts. It rarely happens that lawyers will 
attempt to expose misconduct on the part of a judge until 
his conduct grows so rank that it smells across the conti- 
nent. We need an independent judiciary, but the rights of 
citizens are dependent for their preservation equally, if not 
more, upon an independent bar, and an independent bar, if 
protected, will quickly expose favoritism and unfairness of 
the judges. 

But somebody must expose the wrongs and injustice 
to and betrayal of inventors in the present system of ad- 
ministering the patent law, even at the risk of disbarment 
and disgrace. Patent counsel who have had long experi- 
ence (not representing the big corporations) will remark 
frankly, when speaking under the seal of professional con- 
fidence: How^ seldom does it happen in certain courts that 
a poor man can win a patent suit; and they will also say, 
on learning that certain corporations are parties, without 
knowing anything of the merits : That corporation will 
win; simply on what they know of the strong call of those 
vested interests. But such counsel dare not say such things 
openly. Inventors are practically helpless and unable to 
make effective protest, for they are proverbially poor, wholly 



AsAidstoMonopoly 45 

unorganized and have no means of becoming organized. 
Recently the Inventors' Guild has suggested the appoint- 
ment of a commission with a view of ultimately remedying 
present abuses and securing protection for inventors ; but 
this guild is limited to a membership of about fifty of the 
more prosperous inventors of the country. The larger 
numbers of poor and struggling inventors have no means 
of protecting or of striving to protect their inventions from 
appropriation. 

Under the Constitution the only way in which an unfair 
or dishonest federal judge can be punished is by the cum- 
brous and impossible method of inducing a majority of the 
House of Representatives to impeach him before the Sen- 
ate, and then persuading two-thirds of the senators present 
to find him guilty, who often include among themselves the 
representatives of that same alliance between politics and 
big business to which many of the judges owe their ap- 
pointments to the bench, and for whom, therefore, ''im- 
peachment is scarcely a scarecrow," as Thomas Jefferson 
declared. And in patent cases a judge can "throw" his 
decisions in favor of his friends and favorites for years 
and he would have a defense which, under the rule of re- 
solving every doubt in favor of the accused, would often 
be accepted before a court or jury, for he would say: 
I am a layman and do not pretend to understand the tech- 
nical matters involved in patent cases ; but these matters 
are placed before me and I am compelled by law to decide 
them, and I do the best I can. A wealthy corporation can 
purchase "expert" testimony in unlimited quantity to sup- 
port its pretensions, the motive therefor being (i) to con- 
fuse the mind of an honest judge and induce him to render 
a favorable decision by the greater quantity of such testi- 
mony, or (2) to furnish an excuse which a dishonest judge 
can assign for his favorable decision by declaring that he 
agrees with the "experts" (hired) of the defendant (or com- 
plainant). If conditions are to remain as at present, an 
inventor whose patent is being infringed should bring his 
action in the District of Columbia, if he can find acts of 
infringement committed there, for he can then appeal to 



aum.Mt .... ■ i,...,J'. J 



46 The Patent Law and Its Administration 

and have his patent finally construed by the Supreme Court, 
even though it will require perhaps five years to do so. 

[The fact that, since the above statements were written, 
a federal judge has for the first time been impeached and 
removed from the bench for moral delinquency, does not 
make them any less applicable to the situation described.] 



A REMEDY FOR PRESENT ABUSES 

IT is useless to point out a wrong or an injustice in the 
administration of governmental affairs unless a remedy 
can be suggested that can be applied with reasonable ease 
and that will correct the wrong or mitigate the injustice. 
In the matter under discussion an adequate remedy for 
most of the wrong and injustice so apparent at present, 
which make it impossible for the great majority of inven- 
tors to protect their rights of which the Government by 
its solemn instruments under its seal has assured them, is 
immediately at hand, and the governmental machinery for 
putting it into operation is with modifications already in 
existence. 

There is at Washington a Patent Office equipped with 
a physical plant which, although old and somewhat out of 
date and sorely in need of reconstruction and enlargement, 
is efficient. There is now in the United States treasury,' 
which should be devoted to this purpose, a balance to the 
credit of the Patent Office of about $7,200,000. That office 
is under the management and direction of a corps of offi- 
cials and experts who are devoting their lives to the work 
of studying all applications for patents and issuing patents 
to those entitled thereto. This body of men, whom we 
may call the Patent Office Force, constitutes probably the 
ablest and most expert body on all matters relating to pat- 
ents and the scientific principles which underlie all the sub- 
ject-matter of patents that can be found in the world. 
There is also in the Patent Office a court or division for 
determining who shall be entitled to the patent where two 



AsAidstoMonopoly 47 

or more persons are claiming a patent for the same inven- 
tion. We may call this division the "Interference Court" 
in the Patent Office, for it has all the characteristics of a 
court. The issue between the parties is framed by the court 
(examiner). Each of the parties files a statement under 
oath (without seeing the other party's statement) as to 
when he made the invention, when he made a drawing of 
it, when he disclosed it to others, when he reduced it to 
practice, etc., and on these statements for pleadings the 
testimony of the parties is taken and the issues decided. 
And the questions decided in this ''Interference Court" are 
exactly the same, and require the same knowledge and skill 
for their decision, as those decided in a court of equity in 
a suit for infringement of a paterrf. First, are the mechan- 
isms of the two inventors that are described in their ap- 
plications substantially the same? for if they are not, there 
can be no interference ; and this is the same question that 
arises where the infringement of a patent is alleged. Sec- 
ond, did A make the invention before B, and has he used 
reasonable diligence in perfecting it? for, if so, he is en- 
titled to the patent ; and the same question must be decided 
in an infringement suit if the defendant asserts that an- 
other made the invention before the patentee. Third, was 
the apparatus on which a patent is sought in prior public 
use or is it disclosed in a prior patent, so as to defeat the 
right to a patent? and the same question must be decided 
by a court when the defendant tries to show an anticipation 
of the patent. 

This "Interference Court" has adopted a system of 
rules for the taking of testimony, for the introduction of 
exhibits, for the hearing of all proper motions, for the ar- 
gument of the cause and for necessary appeals, which for 
liberality of procedure and elimination of unnecessary red 
tape and expense might well be copied by all the federal 
courts from highest to lowest. The humblest citizen may 
address a letter to The Commissioner of Patents, making 
any possible inquiry relating to a matter of Patent Office 
practice, or to any phaSe of a pending case in which he is 
interested, and if he has the ability merely to make himself 



48 The Patent Law and Its Administration 

understood he will receive a prompt and courteous answer; 
and if-he desires advice as to how he shall proceed to pro- 
tect his rights under stated circumstances it will be freely 
given. Considering the magnitude of the issues involved, 
which are often as great as those in the most important 
infringement suits, there is no doubt that this Interference 
Court is more ably and economically conducted and with 
greater liberality of procedure (notwithstanding an absurd 
number of appeals) than any court in the United States; 
and in all contests therein there is no person to whom the 
officials care so much to listen as to the inventor himself, 
for they realize that the man in whose brain the invention 
originated is best able to explain it. The writer has him- 
self seen an ex-commissioner of patents ordered to hold his 
silence when interrupting and trying lawyer-like to confuse 
the explanations of an inventor in an interference contest. 
No costs are allowed in this court (until the case goes on 
appeal from the Patent Office to the Court of Appeals of 
the District of Columbia, a cumbrous proceeding, adding 
needless expense). So-called "expert" testimony is practi- 
cally unknown and is never necessary; because the officials 
who decide the cases are themselves experts through years 
of constant devotion to their tasks. When such testimony 
is purchased the officials understand that it is done for the 
purpose of misleading them and give it no attention. 

It is scarcely possible in an article like the present to 
do more than give the briefest outline of such changes in 
the present law and practice of the courts and in the or- 
ganization of the Patent Office as should be made to elim- 
inate much of the wrong and injustice now so transparent. 
These measures may be briefly summarized as follows: 

1. Change the name and the organization of the Patent 
Office and make it both in fact and in name The United 
States Patents Court, 

2. Give to this Patents Court complete and exclusive 
jurisdiction of all matters relating to patents both before 
and after their issue, including the examination and allow- 
ance of applications and the issue* of patents, the decision 
of interferences, the repeal and cancellation of patents 



AsAidstoMonopoly 49 

erroneously or fraudulently obtained, and the decision of 
all suits for the infringement of patents. 

(While speaking' here only of patents, there appears to 
be no valid reason why trademarks and copyrights should 
not also be added.) 

3. As part of this Patents Court the present machinery 
and corps of officials should remain substantially as at pres- 
ent for the examination of applications and the issue of 
patents and the decision of interferences, except as to ap- 
peals now too numerous. The force should be increased so 
as to insure prompt action on all applications. 

4. As part of this Patents Court there should be a 
Board (Court) of Patents Appeals, to consist of seven (at 
least) members (judges), one of whom should act as its 
chief or presiding judge and five (at least) of whom should 
sit at the hearing of every matter presented for decision. 
As all necessity for so-called "expert" testimony would be 
eliminated, the judges themselves being experts, the rec- 
ords would be short and could be quickly read. The de- 
cision of this Patents Appeals Court should be absolutely 
final on all matters relating to patents except when the con- 
stitutionality of a law or the construction of a treaty is in- 
volved, or unless a stated number of the judges should cer- 
tify specified questions of law to the Supreme Court, and 
these matters only should be submitted to that court for 
final decision. 

5. There should be appointed such number of trial 
judges of said Patents Court as the work to be disposed of 
from time to time may require, to hear and decide in the 
first instance all suits for the cancellation or for the in- 
fringement of patents, as well as interferences. From the 
decision of the trial judge an appeal would lie to the Court 
of Patents Appeals, and their judgment would be final, ex- 
cept as pointed out above. Judges of the Appeals Court 
could be authorized to act as trial judges when not acting 
in the Appeals Court and trial judges could be assigned to 
sit in the Appeals Court when at least five of the appeals 
judges were not available through sickness or otherwise. 

6. All appeals in matters relating to the issue of pat- 



wf^"^ 



50 The Patent Law and Its Administra'tion 

ents, the right of applicants to make given claims, inter- 
ference contests, etc., should go directly to this Court of 
Patents Appeals from the tribunal first deciding the matter, 
or possibly to a Board of Examiners and then to the Ap- 
peals Court for final decision. Multiplicity of appeals is 
a curse to a poor man and puts him at a disadvantage with 
a rich adversary. 

7. The commissioner of patents should be relieved of 
all judicial duties and he should be the administrative head 
of this Patents Court, which would give him all that one 
man should do, but he should be eligible for promotion to 
a judgeship. 

8. In making appointments of judges of this Court of 
Patents Appeals the present commissioner of patents should 
be included (possibly others from the Office force), and 
their salaries should be at least equal to that of circuit or 
of district judges, that of the chief judge being the high- 
est. Many, if not all, of the trial judges should be taken 
from the present Office force and their places should be 
filled by promotions from other positions in the Office. And 
the rule should be engrafted into the law and made abso- 
lute that hereafter all appointments to the force of this 
Patents Court and Patent Office must be made at the bot- 
tom, and all vacancies that occur in any branch or depart- 
ment thereof shall be filled by promotions from below, of 
which promotions a competent committee (or the Patent 
Appeals Court) shall have charge. 

It is unnecessary for the present to go into further de- 
tails, for the advantages that would follow are apparent. 
Trials of all matters would be in the hands at all times of 
competent experts, and thus all the present exorbitant ex- 
penses and delays, caused by the necessity of purchasing 
so-called "expert" testimony and which close the doors of 
the court rooms to practically all inventors, so long as they 
keep control of their patents, would be wholly avoided. If 
during the progress of a trial some abstruse or technical 
question arises, the experts in charge of that particular 
branch of the Office (Patents Court) could be appealed to 
and, being in the Government's employ, would give the 



As Aids to Mo n o p o 1 y 51 

desired information impartially without added charge or 
expense, thus placing the rich corporation and the poor 
inventor upon an equality. Infringement suits could be 
finally decided within six months, if simple cases, and with- 
in a year no matter how complicated. 

At present all hearings in interference contests, of 
which there have been 30,000 or more, are heard in Wash- 
ington. In the system proposed it would be no hardship 
if all hearings in infringement suits were also heard in 
Washington; or the trial judges might be assigned to hold 
courts at such designated places and at such stated times 
as would suit the convenience of parties, just as district 
judges now hold court in several places within their dis- 
tricts, and these might include both interferences and in- 
fringement suits. Ordinarily the office of one of the attor- 
neys would be a most convenient place for the first hearing, 
or a room temporarily engaged in a hotel would answer. 
Immediately after the hearing the exhibits could be 
forwarded to Washington, where they would remain for 
examination by the trial judge in writing his opinion and 
for use when the case comes before the Patents Appeals 
Court. No jury is competent to determine the technical 
issues in a patent suit, and if the option of a jury trial must 
be allowed for constitutional reasons it should be made nec- 
essary to bring it in one of the present district courts (the 
circuit courts having been abolished), and it should only 
be permitted on condition that all costs and disbursements 
be paid by the party demanding such trial. 

The efficiency of the whole patent system and of the 
force having charge of its administration would be enor- 
mously increased. If all appointments to the force could be 
made only at the bottom and all vacancies in other posi- 
tions could only be filled by promotions from below, every 
appointee would see before him from the outset the oppor- 
tunity for a life career worthy of his best efforts, for he 
would have ever before him a series of promotions to posi- 
tions of ever increasing importance, dignity and reward, 
with the ultimate goal a trial judgeship, an associate judge- 
ship of the Patents Appeals Court, and finally the chief 



52 The Patent Law and Its Administration 

judgeship itself of this Patents Court, and he would strive 
with the certainty in mind that the success and rapidity of 
his promotions would depend upon his own efforts and the 
fitness which he demonstrateci, and that he could not be 
cheated out of his earned promotions by the appointment 
of some official favorite or political camp-follower. Sal- 
aries of $iopoo for the chief judge and of $9,000 for each 
of the associate judges of the Court of Patents Appeals 
would not be too large, for that court, in the amount and 
importance of the work devolving upon it and in the great 
public service which it would render in protecting and en- 
couraging independent inventors, would be the most im- 
portant court in the country, second only to the United 
States Supreme Court. How utterly we have failed to 
obtain the advantages which must always result from per- 
mitting a group ol employees to earn promotion to the high- 
est position of that group is illustrated in the facts that the 
present Commissioner of patents is the first to reach that 
office as a promotion from the office force at the time, 
and that but one other commissioner had ever had experi- 
ence in the work of the office prior to his appointment as 
commissioner. All the other commissioners were appointed 
for political reasons for the most part, and, while some 
have been efficient, others have been models of mediocrity. 
These opportunities would attract young men of the 
ablest talents and best education into this service. It would 
be desirable that only graduates of technical schools be ap- 
pointed to the force, and they should also be graduates of 
a law school or should be required to complete such a 
course within a given number of years after appointment 
as a condition of being in the line of promotion to one of 
the judgeships. The salaries paid to the young men who 
begin their careers at the lowest positions in this Patents 
Court should be sufficient to attract to the service, not the 
culls of the technical schools, but their ablest graduates, and 
the scale of salaries should be i-eadjusted throughout the 
entire force so as to assure them an increase of salary with 
each promotion sufficient under ordinary circumstances to 
retain them with their ever increasing efficiency in the serv- 




AsAidstoMonopoly 53 

ice. Any member of the force suspected of improper con- 
duct or of favoritism would be put upon trial at once before 
the Patents Court and either acquitted or dismissed from 
the force if found guilty. To perm.it their being promptly 
dismissed for favoritism or misconduct, it might be advis- 
able to make the trial *' judges" referees rather than judges. 
If any member of the force should resign, he should be 
permitted to return only by beginning again at the lowest 
position. Favoritism should disappear and for the first time 
we could hope to see the patent law administered free from 
political or financial influence. 

No radical changes in the law itself would be necessary, 
but such as are made should be with a view to protect and 
reward the inventors ; and to this end a distinction should 
be made between the protection afforded a patent while 
it remains in the ownership of the inventor and the same 
patent after he has parted with all interest therein. When 
a patent is issued to one party and another proves that he 
was the first to make the invention and obtains his patent 
after an interference contest, the first patent should be re- 
called and either cancelled or reissued in a modified form, 
and questions decided in interferences should not, as at 
present, be litigated a second time. When any interested 
party asserts that a patent is void because it is anticipated 
by some prior patent or publication or by some apparatus 
in prior public use, let him move before the Patents Court 
to have the patent declared void and cancelled, but let him 
respect that patent meanwhile and not infringe it until his 
motion is finally decided in his favor. The defendant 
should' be compelled to remove every doubt of infringe- 
ment before being permitted to make an apparatus, unless 
he can demonstrate to the court by drawings or models that 
he devised his apparatus prior to the date of application 
of the patent. Under no circumstances should a wealthy 
corporation be permitted to defeat a patent by oral testi- 
mony as to the apparatus it was making or knew how to 
make at a given time that is inconsistent with or contra- 
dicted by its contem.poraneous catalogs and circulars. At 
present, if the trial court holds that one claim of the patent 



\ ^ 



54 The Patent Law and Its Administration 

has been infringed and that another claim is void,*the de- 
fendant can appeal at once, but the patentee cannot appeal 
until after the defendant's appeal shall be decided, rarely 
less than one or two years thereafter. This technical quib- 
ble of the practice should be eliminated. 

In making the changes suggested and putting the new 
system into operation there is one danger point at the out- 
set against which care must be taken. It would probably 
be necessary to appoint to this Patents Appeals Court a 
number of men whose only experience with patents has 
been as patent lawyers or as judges of the federal courts, 
and great caution must be shown lest that court be domi- 
nated at the outset by those who are ever willing to serve 
or to show favor to the large manufacturing trusts and cor- 
porations for favors received and for others expected. For 
several years there has been talk before Congress looking 
to the establishing of a special court at Washington to hear 
and decide all appeals in patent suits instead of having them 
heard by the nine circuit courts of appeals, as at present. 
The only advantage of such a court would be that all liti- 
gants in patent suits would h^ve their appeals heard and 
decided by this one court instead of by the present nine 
circuit courts of appeals. But it would not aid the poor 
man a particle nor lessen his present burdens of delays and 
expense, because the cases must be prepared and heard 
before the trial court in the very same manner as at 
present, with all the delays, all the expenditures for "ex- 
pert" testimony, for printing, certifying, etc. Indeed, it 
would rather add to the present burdens of poor litigants. 
Instead of establishing this proposed court, it would be far 
better to merely transfer for final decision all appeals in 
patent suits to the Court of Appeals of the District of Co- 
lumbia and authorize that court to hear and decide such 
appeals instead of the present nine courts of appeals. That 
court has had much larger experience in patent matters, 
in connection with appeals in interference cases (the ques- 
tions being substantially the same as in infringement suits), 
than any other court in the country. 

President Taft's suggestion in a recent speech that he 



AsAidstoMonopoly 55 

hoped the Commerce Court would be made a court of ap- 
peals for all patent cases is most unwise. That court is 
composed of five circuit judges, each of whom serves five 
years, and he cannot be reappointed for one year thereafter. 
The chief justice of the Supreme Court must designate a 
new circuit judge to take the place of each retiring judge. 
Very few, if any, of these judges will have had sufficient 
experience to make them competent judges in patent cases, 
and as soon as a judge acquires some skill by five years' ex- 
perience, he must give place to a new and inexperienced 
judge. The powerful manufacturing combinations will 
doubtless try to use all the influence they dare attempt to 
use to secure the appointment of their favorites to this 
court. Moreover, it will not lessen the delays and expenses 
of the present system a particle, nor afford a poor man 
the slightest assistance in upholding his patent. 

Is it possible to effect such changes as will make the 
administration of the patent law independent and impartial, 
place the rich man and the poor man more nearly upon an 
equality and give every inventor assurance that he can have 
the merits of his invention and patent finally determined 
without prohibitive delays and expense by a court whose 
judges are under no obligation to politics or big business 
for their appointments or their promotions, are so expert 
in their knowledge of the matters to be decided that pur- 
chased testimony can be outlawed, and who are sufficiently 
numerous to prevent the possibility of a single member of 
the court deliberately "throwing" the decision in favor of 
some wealthy or political friend to whom he is either 
obliged or from whom he hopes for future favors ? ■ It may 
be taken as a certainty that no such change will be per- 
mitted by the large manufacturing corporations and trusts, 
if they can avoid it, unless they and their attorneys can feel 
that they can influence the appointment of judges to the Pat- 
ents Appeals Court herein proposed on whom they can rely 
to protect their 'Vested" interests. They will doubtless pre- 
fer to retain the present system and establish one court at 
Washington to hear and decide all appeals in patent suits. 
That would retain the present system of expense and delays, 



56 The Pate i^ Law and It,s Administration 

the purchasing of ''expert" testimony, etc., which makes it 
impossible for the poor man to defend his rights. They will 
oppose even such a change from the present system unless 
they can feel assured that their interests are not to suffer. 
Nothing will aid the struggling inventor to maintain his 
rights short of an opportunity to go before a court of ex- 
pert judges free from the influence of large business in- 
terests and qualified to understand his patent without "ex- 
pert" testimony, thereby avoiding that huge expense. 

NEW EQUITY RULES OF SUPREME COURT 

THE new Rules of the Supreme Court for governing 
generally the practice in equity suits contain some ad- 
mirable features, among which may be mentioned the fol- 
lowing that must rid such suits of some immemorial drift- 
wood. I. "Unless otherwise prescribed by statute or these 
Rules the technical forms of pleading in equity are abol- 
ished." 2. "Demurrers and pleas are abolished." 3. "Ex- 
ceptions for insufficiency of an answer are abolished." 
4. "The court, at every stage of the proceeding, must dis- 
regard any error or defect in the proceeding which does 
not affect the substantial rights of the parties." One mar- 
vels that these reforms were not adopted a century ago. 
And he also marvels, that while the Justices were about it, 
they did not abolish that other hoary technicality which 
declares that a court has no power to grant relief against 
an error or injustice in any suit, provided it had jurisdic- 
tion and the term of the court in which such error or in- 
justice occurred has expired. There is scarcely a word in 
these Rules, however, that will aid a struggling inventor to 
uphold his patent, but certain provisions will add to his 
present handicaps, of which we can mention but few. The 
Rules declare that in patent suits "the district judge may, 
upon petition, order that the testimony in chief of expert 
witnesses * * * tnay be set forth in affidavits and 
filed" in court, instead of in the form of depositions. If 
the court grants such petition, it must then on motion order 
those witnesses to be produced for cross-examination 



AsAidstoMonopoly 57 

before the court upon the trial, or else their affidavits ''shall 
not be used as evidence in the cause." This will be an 
added handicap. If the inventor lives in New York and 
has to bring his suit in Chicago or San Francisco, he would 
naturally have his experts in New York make their affi- 
davits. If, then, he must on demand produce them at the 
trial in Chicago or San Francisco, it will add greatly to his 
expenses, and if he has only money enough to hire one ex- 
pert who is too sick to attend, or dies meanwhile, or if for 
any reasons he cannot produce his "experts" in court, he 
will be thrown out of court because he has no expert testi- 
mony, or he must return home and begin again. The pro- 
vision for taking depositions before stated examiners, in- 
stead of adopting the practice in use for decades in the 
Patent Office of allowing the counsel to take the testimony 
before any disinterested notary public on whom they can 
agree, will make an unnecessary expense. The provision 
requiring an abridgment or abstract of the record to be 
made to prepare it for the appellate court will necessitate 
an unnecessary expense for printing the entire record once 
and portions of it a second time. These Rules offer the 
independent inventor no substantial relief from the delays, 
expenses and other handicaps as set forth herein, which 
are incident to the necessity of depending for relief on the 
present federal courts. 



RECENT ACTION BY CONGRESS 

DURING the last Congress (1911-1913), an attempt has 
been made to secure such modifications in the laws as 
would further protect the inventors as well as the public. 
The Inventors' Guild (ante) suggested to the President 
the appointment of a commission to study the situation and 
recommend a course of action, who laid the suggestion 
before the Congress, with the result that the matter has 
been referred to the President's Commission on Economy, 
not one of whose three members has ever had experience 
with patents or patent litigation, nor has knowledge of the 



) ' 



58 The Patent Law and Its Administration 

real needs of inventors. The House Committee on patents 
after holding some hearings has introduced a bill designed 
principally to protect the public against corporations buying 
up a multitude of patents and suppressing them as a means 
of increasing its monopoly, and it has also made a report 
recommending other changes in the patent law. But it is 
safe to say that neither the bill nor the report of the com- 
mittee contains any suggestion that will give the slightest 
added protection to the great army of independent inven- 
tors, nor lessen the handicaps under which they are now 
struggling. The committee's suggestion that the testimony 
in patent suits be taken in open court is futile. How can 
a judge inexperienced in the technical matters involved in 
patent suits and unable without the aid of hired experts to 
read and understand a patent and then make comparison 
between the apparatus described therein and another ap- 
paratus which is alleged to infringe the patent, tell who of 
conflicting experts on opposite sides is telling the truth by 
merely looking at the witnesses while they are testifying 
to what the judge confessedly does not understand? And 
how can he tell whether a question is relevant or material, 
or to what extent a cross-examination should go on a mat- 
ter of which he confesses he is ignorant? He had far bet- 
ter read the testimony when he can study it at his leisure, 
and, if need be, consult some disinterested friend who is 
an expert as to the more difficult matters. Besides, if the 
trial judge does see and hear the witnesses tell their stories 
which he does not understand, how will that aid the judges 
of the appellate court who must decide the case finally by 
relying on what they read without hearing or seeing the 
witnesses? The inventors need and should have their 
rights determined by judges so competent that the neces- 
sity of hiring expert witnesses with the attendant expenses 
and delays can be wholly eliminated. 

The suggestion of a patents appeals court is good so 
far as it goes, but that court should be one of experts, for 
reasons explained above. But the suggestion that the in- 
vention and patent be awarded to the first to file an appli- 
cation describing the invention in the Patent Office is alto- 



AsAidsto Monopoly 59 

gether wrong. One of the best provisions of the law at 
present (and for years past) is that which awards the pat- 
ent to him who first discloses the invention to others, of 
which he must furnish competent evidence by drawings and 
witnesses, and gives the inventor two years, but no more 
as against a later inventor, to adapt and perfect his in- 
vention before fiHng his appHcation, provided he meanwhile 
uses reasonable diligence therein. The Supreme Court has 
repeatedly commended this feature of the law as calculated 
to encourage inventors to perfect their inventions before 
applying for patents, instead of filing applications while 
the inventions are in their crude and immature stage. 
To deprive the independent inventors of this protection is 
to play into the hands of the big corporations. Often these 
men must struggle for years and deny themselves necessi- 
ties in order to make a showing sufficient to enable them 
to raise funds to pay for filing applications for patents, or 
to enable them to live while perfecting their inventions to 
that point where applications are desirable. The big cor- 
poration, on the other hand, has a regular force of experts 
and attorneys, with every facility at hand, and as soon as 
an idea is suggested to the mind of one of them he can 
devote all the time necessary to develop it, calling to his aid 
his co-employees if need be, and an application for a patent 
can frequently be filed within a week. This is often done 
where these employees first learn of the invention from the 
drawings or descriptions of an independent inventor before 
his application is filed, or where they merely hear that an 
apparatus for a given purpose has been constructed with- 
out other knowledge, and then set themselves to work to 
devise some kind of apparatus to accomplish the same re- 
sult- (just as Galileo, having heard of the results obtained 
with a Flanders telescope, without seeing it or hearing it 
described, set himself to work and, within a week con- 
structed a telescope to duplicate or better the results of the 
other), and rush an application with some very broad 
claims into the Patent Office ahead of the first inventor for 
the very purpose of starting an interference and forcing the 
inventor to sell out to the corporation. The committee 



6o The Patent Law and Its Administration 

says that the community is not interested in determining 
who was the first inventor. The real motive of all legisla- 
tion should be to advance the public, not private, welfare, 
and protection should be given to inventors in order that 
they may be both enabled and encouraged to benefit the 
public. The inventor has no inherent or innate right to the 
exclusive use of his invention; such exclusive right is de- 
rived solely from the law and is a voluntary concession of 
society; and this is for two reasons. The first is that the 
inventor can derive no advantage or profit from his inven- 
tion except such as he obtains from the public becoming 
his customers; and the second is that no individual member 
of society, let him strive with unceasing devotion and with 
all the ability he has, can give to society benefits that are 
at all commensurate with those which he receives from 
society. The community should be first of all interested 
in protecting and rewarding the real and first inventor who 
uses reasonable diligence and effort to give the pubHc the 
benefit of his inventive ability in return for that protection 
and reward. If our law is framed with this particular end 
in view, there is no class in the entire community who will 
do more than inventors to protect the public from greedy 
exactions or give to the public a fuller measure of value for 
every effort made by the public to encourage and protect 
them. 

We insert here an incident by way of illustration. A 
number of years ago a woman of highest credibility related 
to the writer an experience she once had in trying to collect 
some overdue rent from an inventor who occupied a small 
cottage in which she was interested in a nearby city of New 
Jersey. As the agent of the property was making no head- 
way in collecting the rent, she determined to go herself 
and demand payment, and notify the inventor that unless 
he promptly paid the rent due and to fall due he and his 
family should be evicted. On arriving at the cottage she 
found the inventor with shoes removed sitting at his din- 
ing-room table, on which were books and papers and a mass 
of drawings and sketches in which he was deeply engrossed. 
Out of regard for his feelings she thought to introduce the 



n 



AsAidstoMonopoly 6i 

conversation by referring to his inventive work, and he 
thereupon began to explain to her the various inventions 
which he was striving to perfect, and told her what he had 
already accomplished, what he hoped to accomplish and the 
difficulties to be overcome. After listening to his conversa- 
tion for more than an hour she became so completely fas- 
cinated by his story and so convinced of the great value of 
the work in which he was engaged that she lost her cour- 
age completely about demanding the rent and threatening 
eviction, and left the inventor's home without giving him 
the slightest indication of the purpose of her call. 

Several decades passed by, and every newspaper in the 
land had become anxious to print anything that inventor 
might have to say upon any subject, for Fame had carried 
his name round the world. About the first of the year 1912 
the New York Times sent a reporter to get an expression 
of his views as to what that year would have in store for 
the American people, and we quote a brief extract from 
that interview as reported: 

"The worst thing about 1912 is the number of hoggish men it will have 
to tolerate, men, I mean who are so greedy that they'll starve an inventor so 
hard he can't work. The inventors can't produce. The men that handle [and 
appropriate] their inventions starve them. I tell you there is something wrong 
— deeply, sadly, fundamentally wrong — with our social system when so many 
greedy men ride the backs of the men who are producers." 

The name of that inventor is Thomas A. Edison, -most 
distinguished of living inventors, and even he realizes the 
gross injustice of present conditions. Future legislation 
should have for its aim to protect and encourage, not those 
inventors who are in the employ of corporations which own 
their inventions even before they are made, nor those whose 
successes have placed them in position to conduct long and 
expensive litigations if need be, but those who are struggling 
and willing to continue without ceasing for the public bene- 
fit if the public will afford them protection against the cor- 
morants who now despoil them. We have no doubt of the 
sincere wishes of the members of the House Committee to 
reward independent inventors, but the difficulty lies in the 
fact that (as we understand) they have had little or no ex- 



62 The Patent Law and Its Administration 

perience with patents and patent litigations, and particu- 
larly have they never been brought into relations with 
struggling inventors which have enabled them to appre- 
ciate the hardships under which they must often labor and 
the difficulties they must overcome. 



CONCLUSION 

THE injustice and wrong to poor litigants inherent in 
the patent law and its administration are but sympto- 
matic of corresponding defects in other branches of the 
law, wherein the delays and expenses are so great that the 
ability of a poor litigant even to obtain a hearing often 
depends upon the friendship or the charitable consideration 
of the attorney. Indeed, our entire system of law and the 
machinery for administering justice are as a whole time- 
worn and archaic, and this is because they were largely 
formulated centuries ago through the influence of judges 
appointed by royalty to serve an aristocratic society whose 
political, social and economic conditions and beliefs dif- 
fered radically in many respects from our own at the pres- 
ent time. There is little wonder that the people are think- 
ing more seriously of these matters than ever before and are 
expressing louder and louder objections to the law and its 
administration, and particularly to those judges who owe 
their positions so largely to a combination of politics and 
big business, and from whom there has come since our gov- 
ernment was established scarcely a suggestion (the Su- 
preme Court deserve the highest commendation for their 
new Equity Rules) calculated to ameliorate present condi- 
tions or to place poor litigants more nearly on an equal 
footing with the rich. 

While it is quite outside the main purpose of this arti- 
cle, we venture the prediction that the near future will wit- 
ness great changes for the better in making and administer- 
ing our laws, which will embody in particular the following 
elements : 

I. The democratizing of politics, to the end that society 



AsAidstoMonopoly 63 

shall utilize the moral energy of all its adult members in 
the making of the laws, instead of excluding therefrom that 
half^of such members to whom we are most indebted for 
our ideas of decency and right living, and that means shall 
be devised whereby society may give direct and effective 
expression to its will in the appointment of public officials 
and the conduct of public business and not permit that will 
to be thwarted by skillful manipulation of unfaithful ''rep- 
resentatives." 

2. The democratizing of law and the administration 
of justice, to the end that modern ideas of equity and moral- 
ity, instead of time-worn and largely artificial rules of right 
(instead of "the ancient learning of the common law, its 
technical peculiarities and feudal origin, its subtle distinc- 
tions and artificial logic," 7 Wheaton, xvi), shall be recog- 
nized as the only proper basis of law, that the machinery 
of the courts shall be simplified, and their processes cheap- 
ened and quickened in the interests of poor litigants, and 
that judges, freed from obligations to politics and big busi- 
ness and bound to maintain such freedom as a condition of 
remaining on the bench, shall render their decisions with 
the sole purpose of effecting the desires of the public 
thought and the public conscience, the truest and most in- 
fallible guides which they can follow. • 

3. The democratizing of industry, to the end that the 
amount and value of living force expended in the produc- 
tion of wealth shall be as certainly ascertained, and even 
more carefully conserved, as are the amount and value of 
mechanical force, and that society shall find means to pro- 
tect and promote what it is just beginning to recognize as 
its best interests by insisting upon a fair and just distri- 
bution of the profits of every business enterprise among all 
those who contribute of their living force to its success, in- 
stead of permitting a dozen or fifty men to appropriate to 
themselves out of such profits tens or hundreds of millions 
of dollars, while leaving thousands of workers on whose 
labor these profits principally depend so poorly off that six 
months' enforced idlenes? makes them unable to pay for 
living necessities. 



f,?K 23 M 



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PUSH THIS PAMPHLET 



If you believe the conditions herein shown up ought to be 
remedied. CThe author and publisher has permitted us 
to put the price down so low that you can afford to push 
it. CThe evils disclosed, when understood by enough 
people, will begin to make a noise. Soon after that the 
people will get over a mere shaking of their heads and 
saying "too bad" — they will in their turn begin to make 
a noise — and that will be the beginning of the remedy. 
Send a dozen or a hundred copies to your friends, and 
charge the small cost to your desire to make this country 
a little nearer an honest and real republic. It will be a 
better place for you and your children when it shall become 
a real republic, and w^hen the army of struggling inventors 
shall be able to protect their inventions from appropriation, 
and thus be encouraged to renewed efforts in behalf of 
the public welfare. 

You can get the pamphlets (mailed to any post-office 
address in the United States) at 15 cents a copy, or 

In lots of 25 copies at \2% cents per copy 



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